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STARMAKERS PUBL. CORP. v. ACME FAST FREIGHT

September 30, 1986

STARMAKERS PUBLISHING CORP., Plaintiff
v.
ACME FAST FREIGHT, INC., Defendant



The opinion of the court was delivered by: HAIGHT

MEMORANDUM OPINION AND ORDER

HAIGHT, District Judge:

Starmakers, a shipper, filed this diversity action pursuant to 28 U.S.C. § 1332 to recover damages for the alleged late delivery of goods shipped by Starmakers pursuant to a contract of carriage with Acme, a freight forwarder.

 In a Memorandum Opinion and Order dated July 17, 1985, 615 F. Supp. 787 (S.D.N.Y. 1985), familiarity with which is assumed, the Court dismissed all plaintiff's causes of action except for the fourth.

 That fourth cause of action alleged that the merchandise entrusted to defendant for delivery had a value of $9,720; and that as a result of defendant's breach of contract, the merchandise "had become unsaleable, unuseable and of no value." Accordingly damages were claimed in the amount of $9,720. Complaint at PP18-20.

 In accordance with applicable authority, the Court construed the forth cause of action as one for diminution in the market value of the goods between the time of delivery and the time when they should have been delivered. 615 F. Supp. at 791.

 Pre-trial discovery then took place. Defendant now moves for summary judgment dismissing the fourth cause of action and, with it, the complaint. Plaintiff cross - moves for summary judgment in its favor on that cause of action. For the reasons which follow, I deny plaintiff's cross - motion, grant defendant's motion, and direct the entry of summary judgment in defendant's favor, dismissing the complaint with prejudice.

 The shipped material in suit consisted of quantities (known in the trade as "dumps") of copies of two posters depicting characters from the movie "The Gremlins." On June 8, 1984 plaintiff delivered the posters to defendant in New York City, for delivery to a company called Circus World in Taylor, Michigan. Circus World was a customer of plaintiff Starmakers, which is in the business of producing, selling, and distributing posters in the entertainment world.

 Defendant delivered the posters to Circus World on July 9, 1984. Plaintiff's claim is that delivery should have been made within four days after June 8, 1984.

 Defendant served plaintiff with a request to admit that the "value of the [posters] . . . on July 9, 1984 was not less than their value on June 8, 1984." Plaintiff's sworn response to that key request consisted of the single word "unknown." Interpreting that rather cryptic response as evidence "that even [plaintiff] had no reason to believe the value of the posters had changed," defendant's brief at 5, defendant moved for summary judgment on the fourth and sole survivng cause of action.

 Plaintiff's cross - motion for summary judgment on the fourth cause of action relies upon the affidavits of two of its officers. These affidavits state, in substance, that plaintiff received a purchase order for the Gremlin posters from Circus World on May 14. The affidavit of Abraham Weinberger, plaintiff's vice president, states in part:

 "The 'GREMLIN' poster which is the subject matter of this action was to be sold to our customers to that our customers could sell it to retailers who would sell it ultimately to consumers. All of this was timed to coincide with a movie called 'THE GREMLINS,' which was to be shown at the movie theatres. ACME should have delivered the dumps with [sic] 4 to 5 days after pickup on June 8, 1984." Affidavit at 4.

 The cause and consequence of plaintiff's loss are further explained in the Weinberger affidavit (at 7) as follows:

 "The value of dumps on June 9, 1984 was $9720.00. On July 9, 1984, the posters were refused by CIRCUS WORLD because they were useless to them as a sales item. It would take two to three weeks after to distribute from the warehouse to their stores. On July 9, 1984 they became worthless to CIRCUS WORLD and certainly worthless to STARMAKERS. We still have the cartons ...


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