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


Decided: December 31, 1997

Before GREEN, J.P., and PINE, WISNER, CALLAHAN and FALLON, JJ. Brown and Kelly, L.L.P. by Brian Melber, Buffalo, for Defendant-Appellant. C. Kenneth Foit, Tonawanda, for Plaintiff-Respondent.

 Supreme Court properly denied defendant's motion for summary judgment dismissing the complaint.   Plaintiff commenced this action to recover damages for goods allegedly lost by defendant, a connecting carrier, in shipment from California to plaintiff's office in New York. The bill of lading required plaintiff to file a timely notice of claim with either defendant or the issuing carrier as a condition precedent to recovery.   That standard requirement is authorized by Federal law (49 USC § 11706[e] ) and is generally held to be mandatory (see, Chesapeake & Ohio Ry. Co. v. Martin, 283 U.S. 209, 51 S.Ct. 453, 75 L.Ed. 983;  Georgia, Fla. & Ala. Ry. Co. v. Blish Milling Co., 241 U.S. 190, 36 S.Ct. 541, 60 L.Ed. 948;  Ballen v. Aero Mayflower Tr. Co., 144 A.D.2d 407, 533 N.Y.S.2d 1007).   The bill of lading was the receipt for the goods delivered for transportation and the contract of carriage establishing the rights and duties of the shipper and carrier (see, Chase Manhattan Bank v. Nissho Pac. Corp., 22 A.D.2d 215, 254 N.Y.S.2d 571, affd. 16 N.Y.2d 999, 265 N.Y.S.2d 660, 212 N.E.2d 897;  Winkler Credit Corp. v. United Pipe Nipple Co., 9 A.D.2d 620, 191 N.Y.S.2d 228).   Plaintiff is bound by its terms because those terms, which are standard, were accepted by the consignor as plaintiff's agent (see, Universal, Ltd. v. Stern & Co., 34 A.D.2d 770, 311 N.Y.S.2d 317;  see also, 17 N.Y. Jur 2d, Carriers, § 304;  1 Sorkin, Goods in Transit, § 2.01[7], at 2-13).   Plaintiff may not avoid the terms of the bill of lading by bringing suit in tort rather than contract (see, Georgia, Fla. & Ala. Ry. Co. v. Blish Milling Co., supra, 241 U.S. at 197, 36 S.Ct. at 544;  American Synthetic Rubber Corp. v. Louisville & Nashville R.R. Co., 422 F.2d 462, 468;  San Lorenzo Nursery Co. v. Western Carloading Co., 91 F.Supp. 553, 555;  see also, Clark-Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 N.Y.2d 382, 389-390, 521 N.Y.S.2d 653, 516 N.E.2d 190).

 In support of its motion, defendant submitted evidence establishing only that plaintiff did not file a timely notice of claim with it.   Because defendant failed to establish that plaintiff also did not file a timely notice of claim with the issuing carrier (see, Germini v. Southern Pac. Co., 209 A.D. 442, 204 N.Y.S. 603), defendant failed to demonstrate the absence of any material issues of fact (see, Ayotte v. Gervasio, 81 N.Y.2d 1062, 1063, 601 N.Y.S.2d 463, 619 N.E.2d 400;  Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).

Order unanimously affirmed without costs.


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