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RESNICK v. VANTAGE DELUXE WORLD TRAVEL

United States District Court, Southern District of New York


September 2, 2003

FLOYD RESNICK, PLAINTIFF, AGAINST VANTAGE DELUXE WORLD TRAVEL, INC., DEFENDANT

The opinion of the court was delivered by: Lewis Kaplan, District Judge

ORDER

Plaintiff was injured in an alleged accident aboard the M.S. RIVER EXPLORER on November 9, 2001. He brings this action under the admiralty jurisdiction for negligence and breach of the contract of passage. Defendant moves to dismiss the complaint or, alternatively, for summary judgment of dismissal.

The complaint alleges that the defendant owned, operated, maintain and controlled the RIVER EXPLORER and that plaintiff, a passenger, was injured in consequence of unspecified negligence. Although the notice of motion indicates that relief is sought first under Fed.R.Civ.P. 12(b) (6), defendant in fact does not dispute the legal sufficiency of the complaint. Accordingly, the only relevant focus is the alternative motion for summary judgment.

The facts set forth by plaintiff plainly raise a genuine issue of material fact as to whether Vantage, by holding itself out as the owner and operator of the vessel, is estopped to deny its ownership and operation, in which case it would be liable for any negligence of the actual owner and operator. Rovinsky v. Hispanidad Holidays, Inc., 180 A.D.2d 673, 580 N.Y.S.2d 49 (2d Dept. 1992). Vantage's contention that the disclaimer of liability set forth on the back side of plaintiff's invoice is inconsistent with the assertion that it held itself out as the owner and operator is insufficient. The language of the disclaimer arguably is subject to the construction that it applies only to liability for services provided by third party suppliers. In view of the facts alleged by Page 2 plaintiff, a reasonable trier of fact could find that the disclaimer does not go to services provided by Vantage itself. As Vantage, on a view of the evidence most favorable to plaintiff, represented that it was the owner and operator of the vessel, the disclaimer, read in context, did not apply to services rendered by the owner and operator.

Accordingly, the motion is denied in all respects.

SO ORDERED. Page 1

20030902

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