The opinion of the court was delivered by: Mishler, District Judge.
MEMORANDUM OF DECISION AND ORDER
Defendant moves for summary judgment, dismissing the
complaint. Plaintiff opposes the motion.
The following facts are undisputed or conceded:
Plaintiff, Elroy Enterprises, Inc. ("Elroy"), is a New York
corporation. Defendant, Roadway Express, Inc. ("Roadway"), is
an interstate motor carrier engaged in the business of
In May 1987, Elroy and Roadway entered into an agreement
whereby Roadway was to ship cartons containing records and
tapes from Port Washington, New York, to WEA Central Returns
("WEA") in Bensonville, Illinois. The two shipments were
delivered to WEA on May 12 and 21, 1987. WEA executed delivery
receipts, noting that the shipments were "received subject to
count and examination." (Roadway's 3(g) statement, Exhs. C and
On or about August 6, 1987, WEA advised Elroy that some
cartons had been lost and that Elroy should file a notice of
claim with Roadway. According to Elroy, WEA also stated that
it had notified Roadway of the missing cartons. (Elroy's 3(g)
statement, ¶ 4). However, appended to Elroy's 3(g) statement as
Exhibit A is a notice from WEA which states that, in May 1987,
its Bensonville office notified Elroy (not Roadway) of the
The Uniform Straight Bill of Lading ("bill of lading"),
which evidences the agreement between Elroy and Roadway,
contains the following provision, prescribed and approved by
the Interstate Commerce Commission ("ICC"):
As a condition precedent to recovery, claims must
be filed in writing with the receiving or
delivering carrier, or carrier issuing this bill
of lading, or carrier on whose line the loss,
damage, injury or delay occurred, within nine
months after delivery of the property . . . or,
in the case of failure to make delivery, then
within nine months after a reasonable time for
delivery has elapsed; and suit shall be
instituted against any carrier only within two
years and one day from the day when notice in
writing is given by the carrier to the claimant
that the carrier has disallowed the claim or any
part or parts thereof specified in the notice.
Where claims are not filed or suits are not
instituted thereon in accordance with the
foregoing provisions, no carrier hereunder shall
be liable, and such claims will not be paid.
Uniform Straight Bill of Lading, Terms and Conditions, Section
2B. See Russell Aff., Exh. A (copy of Section 2B appended).
Kenneth Cocharine, accounts payable clerk for Elroy, states
that he mailed a copy of Elroy's notice of claim to Roadway on
or about January 26, 1988. Each time Roadway receives a notice
of claim, it must register the claim in its records and
acknowledge receipt of the notice, in writing, to the
claimant. This procedure is mandated by
49 C.F.R. § 1005.3.*fn1 See also Smith Aff. ¶ 10 and Exh. H. Roadway's
records reveal that it received a written claim from Elroy on
April 18, 1988. This claim had been mailed to them on April 11,
1988, by Margie Russell, a sales representative in Roadway's
Deer Park, New York, office. Russell received the written claim
on April 6, 1988, when it was hand-delivered to her at Elroy's
Port Washington office. Roadway's records therefore state that
the notice of claim was filed on April 6, 1988.
On August 23, 1988, Roadway disallowed Elroy's claim on the
ground that it was not timely filed.
Elroy commenced this action in the Supreme Court of New
York, Nassau County, on January 3, 1990. Roadway removed the
action to this court on January 16, 1990. Roadway moves for
summary judgment on the ground that Elroy failed ...