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Supreme Court, Appellate Division, First Department, New York.

Nitza TURNER-SCHRAETER, Plaintiff-Appellant, v. BRIGHTON TRAVEL BUREAU, INC., et al., Defendants-Respondents.

Decided: February 23, 1999

RUBIN, J.P., MAZZARELLI, ANDRIAS and SAXE, JJ. Jeffrey T. Horvath and Richard P. Cohen, for Plaintiff-Appellant. Michael B. Sena, for Defendants-Respondents.

Order of the Appellate Term of the Supreme Court, First Department, entered August 20, 1997, which, in an action by a travel agent against a tour operator for a refund of a trip cancellation fee, affirmed an order of the Civil Court, New York County, entered November 1, 1996 (Lorin Duckman, J.), granting defendants' motion for summary judgment dismissing the complaint and denying plaintiff's cross motion for summary judgment, unanimously affirmed, without costs.

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 damage 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-Center v. Puritan Farms 2nd, 41 N.Y.2d 420, 425, 393 N.Y.S.2d 365, 361 N.E.2d 1015).  The clause, which in effect uses an estimate of defendants' chances of re-booking 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-Center 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 A.D.2d 204, 205, 682 N.Y.S.2d 371, 373).


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