SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
April 6, 2011
MELISSA ARGENTINA AND STEVEN TORO,
LIBERTY TRAVEL, INC., APPELLANT, -AND- NICOLE ABBATEMARCO,
Appeal from a judgment of the District Court of Suffolk County, First District (James P. Flanagan, J.), entered October 1, 2009.
Argentina v Liberty Travel, Inc.
Decided on April 6, 2011
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: TANENBAUM, J.P., MOLIA and LaCAVA, JJ.
The judgment, insofar as appealed from, after a non-jury trial, awarded plaintiffs the principal sum of $4,660 as against defendant Liberty Travel, Inc.
ORDERED that the judgment, insofar as appealed from, is reversed, without costs, and plaintiffs' action against defendant Liberty Travel, Inc. is dismissed.
In this small claims action, plaintiffs are seeking a refund of the cost of a vacation trip to Sandals Antigua (Sandals), booked through Liberty Travel, Inc. (defendant), by its employee, Nicole Abbatemarco. The undisputed testimony at the non-jury trial established that plaintiffs had paid $4,660 for the trip. Defendant transferred that sum to Sandals for the package and subsequently received a commission of $790 from Sandals. Upon arriving at the resort, plaintiffs' room was "upgraded" to a concierge-level accommodation, which was located farther from the center of the resort than the room they had originally booked. Plaintiffs were dissatisfied with their room's location, the presence of mosquitoes and the lack of "top shelf liquor" at the resort's restaurants. Plaintiff Argentina telephoned defendant's employee to express plaintiffs' complaints, and the employee contacted Sandals to resolve the issues during plaintiffs' stay. Efforts by plaintiff Argentina and by defendant to obtain a refund from Sandals failed, and plaintiffs commenced this action against defendant and its employee.
Following the trial, the District Court awarded plaintiffs $4,660 against Liberty Travel, Inc. and dismissed the claim as to defendant's employee, Nicole Abbatemarco. Liberty Travel, Inc. appeals from so much of the judgment as awarded plaintiffs the principal sum of $4,660 against it.
In general, appellate review of a small claims judgment is limited to determining whether substantial justice has been done between the parties according to the rules and principles of substantive law (see UDCA 1807; Moses v Randolph, 236 AD2d 706, 707 ), and reversal may be warranted when the trial court's conclusions are so clearly erroneous as to deny substantial justice (see Adams v Shaughnessy, 29 Misc 3d 136[A], 2010 NY Slip Op 52016[U] [App Term, 9th & 10th Jud Dists 2010]).
Travel agencies have been found to owe a duty of reasonable care and diligence in selecting a wholesaler (see Marcus v Zenith Travel, 178 AD2d 372, 372 ; Bucholtz v Sirotkin Travel, 80 Misc 2d 333, 334 [App Term, 9th & 10th Jud Dists 1974]). However, this narrowly circumscribed duty does not impose an obligation on the travel agency to investigate the quality of the accommodations (see Shlivko v Good Luck Travel, 196 Misc 2d 164 [Civ Ct, Kings County 2003]).
Defendant arranged plaintiffs' purchase of a package vacation to Sandals. While it appears that once at the resort plaintiffs were displeased with certain aspects of their accommodations, there is no evidence that defendant's employee misrepresented these or any other component of the package. Given a travel agency's limited duty, there was thus no basis upon which to impose liability on defendant. As the judgment, insofar as appealed from, did not render substantial justice (UDCA 1807), it is reversed, and plaintiffs' action against Liberty Travel, Inc. is dismissed.
Tanenbaum, J.P., Molia and LaCava, JJ., concur.
Decision Date: April 06, 2011
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