Turner-Schraeter v. Brighton Travel Bureau, Inc.

• Decision Date: 23 February 1999
• Court: New York Supreme Court — Appellate Division
• Parties: NITZA TURNER-SCHRAETER, Appellant,<BR>v.<BR>BRIGHTON TRAVEL BUREAU, INC., et al., Respondents.

258 A.D.2d 393

685 N.Y.S.2d 692

NITZA TURNER-SCHRAETER, Appellant,

v.BRIGHTON TRAVEL BUREAU, INC., et al., Respondents.

Decided February 23, 1999.

Concur — Rubin, J.P., Mazzarelli, Andrias and Saxe, JJ.

We agree with Appellate Term and Civil Court that the nature of this kosher Passover vacation at a resort hotel in Puerto Rico, including two complete Seders, was such as to justify a liquidated damages clause based on a sliding scale culminating in forfeiture of 100% of the purchase price for cancellations made, as here, within 14 days of departure (see, Truck Rent-A-Ctr. v Puritan Farms 2nd, 41 NY2d 420, 425). The clause, which in effect uses an estimate of defendants' chances of rebooking the trip as the measure of their probable loss in the event of a cancellation, reflects an understanding that although the expense and possibility of re-booking a canceled trip could not be ascertained with certainty, as a practical matter the expense would become greater, and the possibility would become less, the closer to the trip the cancellation was made, until a point was reached, 14 days before departure, that any effort to re-book could not be reasonably expected. Certainly, there is nothing in the record to suggest that at the time they entered into this contract, the parties, both experienced travel professionals, believed that there was any reasonable possibility of tapping an actual market for this specialized tour within two weeks of departure (see, Truck Rent-A-Ctr. v Puritan Farms 2nd, supra). Further, there being a valid liquidated damages provision, defendants' efforts, if any, to re-book the trip are irrelevant (see, Pyron v Banque Francaise Du Commerce Exterieur, 256 AD2d 204, 205).