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January 30, 1996


The opinion of the court was delivered by: SWEET

 Sweet, D.J.

 Defendant American Airlines, Inc. ("American") moves for partial summary judgment declaring that the rights of the parties are governed by the Warsaw Convention, thus limiting the Plaintiffs, Andrew Siben and Leslie Hyman Siben (the "Sibens") remedy for their lost luggage, and in the alternative, for dismissal under 12 (b) (6) F. R. Civ. P. on the grounds that the Sibens fail to state a claim under any applicable theory of state law. For the reasons that follow, the motion for partial summary judgment is denied and the motion to dismiss is granted in part and denied in part.


 The Sibens, residents of New York, travelled on American in January 1995.

 American, a common carrier by air, is a foreign corporation licensed to do business in the State of New York.

 Prior Proceedings

 The Sibens originally brought this action in New York Supreme Court, New York County, by a summons and complaint served on May 1, 1995. The complaint alleged that American was negligent in its handling of their luggage and misrepresented the facts concerning the luggage in a fraudulent, intentional, or reckless way. The Sibens claimed that American's conduct resulted in the luggage being misplaced during their honeymoon, inconvenience from misinformation concerning the luggage's imminent arrival, the opening of and removal of items from the luggage, a ruined vacation, and the infliction of emotional distress on the newlyweds.

 American served and filed its answer to the complaint on or about May 25, 1995. On May 26, 1995, American removed the action to this Court pursuant to 28 U.S.C. ยงยง 1441, et seq.

 On October 13, 1995, American filed notice of this motion. Oral argument was heard on November 29, 1995, and the motion was considered fully submitted at that time.


 Undisputed Facts

 On January 9, 1995, at approximately 7:00 a.m., the Sibens checked two pieces of luggage at the American ticket counter at John F. Kennedy Airport ("JFK") and were given two claim checks. On the Sibens' arrival at Anguilla, only one piece of their luggage had arrived with them. On January 18, 1995, the night before the Sibens' scheduled return departure, they received a telephone call informing them that the missing luggage had arrived.

 In addition to these undisputed facts, the Sibens have alleged American's ownership of the airplanes that carried them during their trip; American has denied ownership, but averred control and operation of the aircraft. American's control and operation of the airplanes on which the Sibens flew will be taken as common ground.

 Facts as Alleged

 In their complaint, Plaintiffs make the following allegations:

 American is a domestic corporation organized and existing under the laws of the State of New York. The Sibens were lawful passengers on a honeymoon trip. At approximately 3:45 p.m. on January 9, 1995, after discovering that the suitcase was missing, the Sibens completed an American Airlines, Inc. Lost Property Report. Between January 9 and January 17, American employees gave the Sibens numerous assurances that the luggage would be found or had been found and that the luggage would be delivered to them. The information given by American employees was known to be false when made, and/or made with a pretense of actual knowledge when knowledge did not actually exist, and/or was given with the intent to deceive and defraud the Sibens.

 During this time, the Sibens travelled repeatedly to the airport to retrieve the lost luggage, not knowing the truth as to the luggage, and, based on American's assurances of the luggage's imminent arrival, refrained from purchasing necessary items. On the return of the missing bag the night before the Sibens' flight back to JFK, it was apparent that the luggage had been opened and items were missing. These events resulted in lost as well as misplaced property, emotional distress, interruptions of the Sibens' honeymoon, and the ruination of their honeymoon trip, damaging the Sibens in the amount of Five Hundred Thousand Dollars. *fn1"

 The Sibens have also submitted affidavits which provide much greater detail than the complaint, including one from Andrew Siben that incorporates a complaint letter to American's consumer relations department. The letter, in turn, refers to attached copies of baggage claim checks.

 The claim checks show no indication either of number of bags checked or the weight of the bags. The misplaced bag weighed approximately eighty pounds and contained approximately ninety to ninety-five percent of the Sibens' clothing for their vacation. Airport personnel informed Mr. Siben that the bag would be delivered the following morning. Two days later, the bag not having arrived, an American representative authorized the Sibens to buy some clothing. On January 12, the wrong bag was delivered to the Sibens' room. That evening, an American representative informed Mr. Siben that the bag would be sent from JFK to the Anguilla airport by the next morning. The Sibens went to the airport the next day, but did not find their bag.

 Two days later, an hour before the Sibens' departure for Jumby Bay Island, off Antigua, an American representative gave the Sibens a check for $ 400 and a travel voucher worth $ 1,336 toward a future flight on American.

 In the next few days, American personnel gave the Sibens "numerous" assurances, which proved empty, that their bag would be delivered. Then, the night before the Sibens were to return home, the bag arrived at Jumby Bay. A number of items were missing, including a 40-year-old shawl of sentimental value.

 Among the grievances arising from this episode was that because the missing bag included needed clothing, the Sibens were unable to engage in activities such as tennis, jogging, and various water sports. Mr. Siben had a similar experience in 1994: American misplaced his bag for five days when he flew from JFK to San Diego.


 I. Legal Standards

 A. Standards For Summary Judgment

 A motion for summary judgment may be granted only when there is no genuine issue of material fact remaining for trial and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Rodriguez v. Sweeney, 72 F.3d 1051, 1995 U.S. App. LEXIS 36120, 1995 WL 753997 (2d Cir. Dec. 19, 1995); Silver v. City Univ., 947 F.2d 1021, 1022 (2d Cir. 1991). "The trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them." Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1224 (2d Cir. 1994). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The moving party bears the burden of proving that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Brady, 863 F.2d 205, 210; Pittston Warehouse Corp. v. American Motorists Ins. Co., 715 F. Supp. 1221, 1224 (S.D.N.Y. 1989), aff'd, 954 F.2d 62 (2d Cir. 1992).

 Summary judgment is viewed "as an integral part of the Federal rules as a whole, which are designed 'to secure the just, speedy and inexpensive determination of every action.'" Celotex, 477 U.S. at 327 (citations omitted). Once the moving party has met its burden of coming forward with evidence to show that no material fact exists for trial, the non-moving party must do more than "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986); see also Anderson, 477 U.S. at 252 ("the mere existence of some alleged factual dispute ...

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