AIT INTERNATIONAL INC v. FEDERAL EXPRESS CORPORATION

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

AIT INTERNATIONAL, INC., Respondent, v. FEDERAL EXPRESS CORPORATION, Appellant.

Decided: December 26, 2000

DAVID S. RITTER, J.P., HOWARD MILLER, SANDRA J. FEUERSTEIN and NANCY E. SMITH, JJ. Newman Fitch Altheim Myers, P.C., New York, N.Y. (Olivia M. Gross and Jeffrey Kelsey of counsel), for appellant. Moshe Assis, New York, N.Y., for respondent.

In an action, inter alia, to recover damages for breach of contract, the defendant appeals from an order of the Supreme Court, Kings County (Garry, J.), dated October 19, 1999, which denied its motion for summary judgment dismissing the complaint, without prejudice to renew.

ORDERED that the order is affirmed, with costs.

The plaintiff commenced this action against the defendant, a national and international delivery service, after a check the defendant collected on behalf of the plaintiff pursuant to a collection on delivery (C.O.D.) was not honored on the ground that it was counterfeit.   The plaintiff seeks damages arising from negligence, breach of contract, and breach of express and implied warranties.   After issue was joined, but before disclosure, the defendant moved for summary judgment dismissing the complaint.   The defendant asserted that the plaintiff's claims were preempted by Federal statute (see, 49 USC § 1305[a] [1] ) and that, in any event, as a matter of law, it fulfilled its duties under the parties' contract.   The Supreme Court denied the defendant's motion.   We affirm.

The plaintiff's claims, all of which arise out of the parties' contractual relationship, are not preempted by Federal statute (see, 49 USC § 1305[a] [1];  American Airlines, Inc. v. Wolens, 513 U.S. 219, 115 S.Ct. 817, 130 L.Ed.2d 715).   Moreover, due to the lack of disclosure, it would be premature to grant summary judgment (see, CPLR 3212[f];  Lantigua v. Mallick, 263 A.D.2d 467, 693 N.Y.S.2d 619).   Thus, the defendant's motion for summary judgment was properly denied without prejudice to renewal after disclosure (see, Smith v. City of New York, 133 A.D.2d 818, 520 N.Y.S.2d 195;  Ottinger v. Dempsey, 122 A.D.2d 125, 504 N.Y.S.2d 517).

MEMORANDUM BY THE COURT.

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