The opinion of the court was delivered by: Platt, District Judge.
MEMORANDUM, OPINION and ORDER
Defendants Jan Trucking & Rigging, Inc. and Jan Packaging, Inc. (collectively "Jan" or "Defendants") bring a motion for summary pursuant to Rule 65 of the Federal Rules of Civil Procedure ("Fed. R. Civ. P.") requesting dismissal of Plaintiff Ideal Steel Supply Corporation's ("Ideal Steel" or "Plaintiff") claims for negligence and breach of contract. Plaintiff brings these claims on the grounds that Defendants failed to properly reassemble a Steel Bar Retrieval System (the "System") after disassembling the unit and delivering it to Plaintiff's warehouse. Plaintiff has demonstrated a number of genuine issues of fact, and accordingly, Defendants' Motion for Summary Judgment is hereby DENIED.
Ideal Steel is a New York Corporation which purchases large quantities of steel from manufacturers and distributors, and then resells the steel in smaller quantities to an end user. Plaintiff stores their steel in two warehouses; one in St. James, Suffolk County and one in the Bronx. (Giacomo Aff. ¶ 2.) Jan is an interstate trucking and rigging company, licensed by the U.S. Department of Transportation and based in New Jersey. (Defs.' Mem. Supp. Mot. Summ. J. ("Defs.' Mem.") at 2.)
On or about May 2002, Ideal Steel purchased a fully operational Bar Retrieval System from a company located in New Jersey. The System is a complex device, which allows an operator to retrieve a bin containing steel bars by punching in a code on a computer screen. (Giacomo Aff. ¶ 3.)
In December 2002, Ideal Steel hired Jan to (i) disassemble the System in the seller's facility in New Jersey, (ii) transport the System from the seller's facility to a storage facility owned by Jan, (iii) transport the System from the storage facility to Ideal Steel's St. James warehouse; and (iv) reassemble and install the System in the St. James warehouse after final delivery was complete. (Brancato Aff. ¶ 4.) There is no dispute that these were the terms of the agreement.
From February 24, 2003 to approximately April 10, 2003, Jan disassembled the System and delivered it to Ideal Steel's warehouse. (Defs.' Mem. at 3.) Over the next few months, Jan attempted to reassemble and install the System in Plaintiff's warehouse, but could not get it to work. Plaintiff alleges that the System was damaged during Jan's reassembly and installation, and not during delivery. (Brancato Aff. ¶ 7.) Giacomo Brancato, the President of Ideal Steel, claims that Jan's foreman, Ted Margo, admitted that Jan was not equipped for this type of job and apologized to him. (Giacomo Aff. ¶ 8.) Soon thereafter, Mr. Brancato called the System's manufacturer, a German company named Katso, to examine it. In October 2003, a Katso representative confirmed that the System had been installed incorrectly. Ideal Steel alleges that it spent a substantial amount repairing the System, and that its business was damaged while the Company waited for it to become operational. (Giacomo Aff. ¶ 9.)
During the period covering Defendants' delivery and installation of the System, Jan issued ten (10) Bills of Lading ("Bills"), which were all signed by a representative of Ideal Steel. (Baldwin Aff., Ex. A; Pl.'s Mem. Opp. Mot. Summ. J. ("Pl.'s Mem. Opp.") at 8-9.) On a number of Bills, under the heading "Description of Articles", an individual handwrote or typed the words "deliver, rig-in & assemble retrieval System." (Baldwin Aff., Ex. A.)
The back of the Bill includes the following provision:
TIME FOR FILING CLAIM AND SUIT As a condition precedent to recovery, claims must be filed in writing with the carrier within nine (9) months after delivery of the property . . . . Suit shall be instituted against the carrier within two (2) years and one (1) 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, the carrier shall not be liable and such claims will not be paid. (Baldwin Aff., Ex. A.) [hereinafter "the pre-suit filing requirement"]
Ideal Steel never filed a claim against Jan. Defendants argue that Ideal failed to meet a condition precedent to bringing suit by not filing such claim.
The Bill also includes this provision:
NOTICE TO SHIPPER - LIMITATION OF CARRIER'S LIABILITY . . . Unless a greater value is declared by the shipper and stated on this Bill of Lading, the carrier's liability for loss or damage to any package or unpackaged item shall not exceed $5,000 per ton of 2,000 lbs. [1 ton] of actual weight, in accordance with the governing Tariff. Shipper Hereby Declares that the released value of this shipment is $___ . . .
Ideal Steel never declared a higher value for the shipment. Jan alleges the total weight of the shipment was 18 tons. Accordingly, Defendants allege the maximum allowable damages are $90,000 ($5,000 x 18). (Defs.' Mem. at 4.) Ideal Steel, however, alleges that the System weighs ...