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April 13, 1995


Deborah A. Batts, U.S.D.J.

The opinion of the court was delivered by: DEBORAH A. BATTS

BATTS, District Judge.

 Defendants Hilton Hotels Corporation and Hilton Waldorf-Astoria Corporation ("Hilton-Waldorf") move for summary judgment pursuant to Fed. R. Civ. P. 56(c) on all of plaintiff's claims. For the following reasons, the defendants' motion is denied in all respects.


 Plaintiff Gisela Moog ("Moog") is a German citizen who stayed at the Waldorf-Astoria hotel in New York City from November 29 to December 1, 1992. Moog arrived at the Waldorf with approximately DM *fn1" 615,000 worth of jewelry, which she carried inside a Louis Vuitton bag. Upon arriving at the Waldorf, Moog placed the jewelry in the hotel's safe deposit box. Moog did not, however, fill out an inventory or identify the value of the items that she placed in the safe deposit box.

 On the evening of November 30, 1992, Moog accompanied some friends to the opera. Prior to leaving the hotel, Moog retrieved a ruby necklace, five bracelets, two rings, a watch, a brooch and two pair of earrings from the safe deposit box. Moog did not return the jewelry to the hotel safe deposit box upon her return to the hotel later that evening.

 The following morning Moog went to the hotel lobby to check out. Moog testified that she placed her Louis Vuitton bag with the jewelry on the floor between her legs while she was checking out of the hotel. When she looked down for her bag shortly afterward, the bag was gone. Roger Conway, a plainclothes hotel security officer, was summoned by the front desk clerk and went to assist Moog. Conway and Moog returned to Moog's hotel room to fill out a Property Loss Report (the "Report"). Conway filled out the report; Moog has minimal command of the English language and was unable to write in English to fill out the Report. They were joined by the Lombardos, friends of Moog who were to meet her at the hotel that day. Mrs. Lombardo, fluent in German and English, helped to translate the Report for Moog. Moog signed the Report after it was translated for her.

 The Report contains the following "Statement of Guest/Owner": "While waiting on checkout in lobby I put my Louie Viton [sic] large bag down beside me, waited a few minutes, looked down and bag was missing." Id. Conway, the security officer who filled out the Report, later testified that he was aware at the time that the "Statement" varied from Moog's original narration of events, in which she stated that she placed the bag between her legs, rather then beside her.

 According to both Moog and the Lombardos, Conway urged Moog to return immediately to Germany upon learning that Moog's house keys and home safe keys were among the items in the stolen bag. Moog and the Lombardos testified that Conway expressed concern over the possibility that the thieves could be part of an "international crime ring," and could use Moog's house keys to obtain entry to her home in Dusseldorf, Germany. Consequently, with Conway's assistance, Moog was able to change her flight plans and book a return flight to Germany that day; Conway faxed a copy of his report to Lufthansa to verify the emergency. Moog testified that Conway agreed to fill out a police report for the stolen goods. Both Moog and the Lombardos testified that Conway told Moog not to worry, and that "we [the Waldorf] will take care of everything from our side ... If your insurance doesn't pay, don't worry. The Waldorf will take care of it." (Lombardo Aff. at 23).

 Conway's description of these events differed, in that he testified that Moog refused to fill out a police report and wanted to return to Germany as soon as she could. Conway also flatly denied ever promising Moog that the Waldorf would "take care of" reimbursing her for the value of the stolen goods. Conway could not recall ever promising to file a police report on Moog's behalf, although he did testify that the Waldorf would, on occasion, fill out police reports on behalf of guests. (Conway Dep. at 82-85).

 An "Unusual Occurrence Report," which Conway filed later that day, states: "Because of the time of occurrence, and the amount of time before flight departure, *fn2" the guest refused to make a police report" (emphasis in original). (Def. Exh. I). A December 11, 1992 letter by Peggy Crook, claims manager for Hilton Hotels Corporation, to Ewig International Marine Corp., on behalf of Moog's insurer, describes the incident as follows:

According to our front desk clerk ... she saw Mrs. Moog approaching the counter alone carrying a fur coat. She did not notice that she was carrying a bag. The lobby was very quiet ... There were three security officers in the lobby, two plainclothes, one uniformed, who did not see any suspicious persons at the counter nor did they see anyone leave with the bag. The lobby was not busy at all ... Mrs. Moog's loss report states that the bag was next to her. This is not what she told our security officer
. . .
Mrs. Moog prepared the loss report but did not notify the police due to time constraints. The hotel cannot report the loss of someone else's property. (Def. Exh. A).

 Shortly after the incident occurred, Moog filed a claim with Provinzial, the insurer of the stolen jewelry. In a letter dated 2/5/93, Provinzial denied Moog's insurance claim on the grounds that Moog failed to provide "safe custody" for the bag and that Moog failed to file a police report subsequent to the loss of her bag. Susanne Arentz, the claims adjuster at Provinzial who denied Moog's insurance claim, testified that Moog's claim was denied because she failed to file personally a police report, as required by the terms of her policy, and because she failed to maintain "constant physical and eye contact" with her bag. When asked whether Moog's claim would have been processed had Hilton-Waldorf made a police report on Moog's behalf, Arentz testified that the claim would still have been denied.

 On October 15, 1993, Moog filed this diversity action against Hilton-Waldorf, claiming (1) defendants were negligent in failing to provide reasonable security at the hotel, (2) defendants breached their promise to file a police report on Moog's behalf, leading to the denial of her insurance claim, (3) defendants filed an inaccurate incident report and transmitted it to Provinzial, leading to the denial of Moog's claim, (4) defendants' letter of December 11, 1992, which was sent to Provinzial, contained a false and erroneous description of events and led to the denial of Moog's ...

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