United States District Court, S.D. New York
OPINION AND ORDER
Vincent L. Briccetti United States District Judge
Avigail Rosenberg brings this action against defendant United
Parcel Service General Services Co., a/k/a United Parcel
Service, Inc. d/b/a UPS (“UPS”), under the
Convention for the Unification of Certain Rules for
International Carriage by Air, Done at Montreal on 28 May
1999, S. Treaty Doc. No. 106-45 (entered into force on
November 4, 2003) (the “Montreal Convention” or
“Convention”), alleging UPS caused a shipment of
cargo from the United States to Israel to be delayed, and
that plaintiff incurred damages as a result.
the Court is UPS's motion for summary judgment. (Doc.
following reasons, the motion is GRANTED.
Court has subject matter jurisdiction under 28 U.S.C. §
submitted a brief, a statement of facts pursuant to Local
Civil Rule 56.1(a), and two declarations
(“Dec'l”) with supporting exhibits, in
support of its motion. Plaintiff submitted a Plaintiff did
not submit a brief or a counterstatement of facts pursuant to
Local Civil Rule 56.1(b). Thus, the Court deems the facts in
UPS's Rule 56.1 statement to be undisputed, except to the
extent they are directly contested in Mr. Katz's
declaration. Local Civil Rule 56.1(c); T.Y. v. N.Y. City
Dep't of Educ., 584 F.3d 412, 417-18 (2d Cir. 2009)
(“Should the nonmoving party wish to contest the
assertions contained within a Rule 56.1 statement, [it] must
respond to each of the statement's paragraphs and
include, if necessary, a statement of the additional material
facts that demonstrate a genuine issue for trial.”).
These motion papers reflect the following factual background.
9, 2014, plaintiff contracted with UPS over the Internet to
have UPS transport four packages containing Apple iPhone 5S
cellular telephones from New York to Israel to be delivered
to a recipient with an address in Kiriat Malachi, Israel.
(Pacecho Dec'l ¶¶ 5, 6).
transported the shipment to Israel without incident in May
2014. However, upon arrival at Ben Gurion International
Airport in Tel Aviv, the shipment was placed under a hold by
Israeli Customs. Israeli Customs would not clear and release
the shipment until required shipping charges, customs duties,
taxes, fees, and surcharges were paid. An attorney for
plaintiff contacted UPS in late June 2014 regarding the
delayed delivery. Plaintiff had not paid any of the required
shipping charges, duties, taxes, or fees at that time.
several email exchanges with various UPS agents, plaintiff
made the required payments on August 18 and 19, 2014. Israeli
Customs cleared and released the shipment on August 31, 2014.
UPS delivered the shipment to the intended recipient on
September 1, 2014.
Court must grant a motion for summary judgment if the
pleadings, discovery materials before the Court, and any
affidavits show there is no genuine issue as to any material
fact and it is clear the moving party is entitled to judgment
as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).
is material when it “might affect the outcome of the
suit under the governing law. . . . Factual disputes that are
irrelevant or unnecessary” are not material and thus
cannot preclude summary judgment. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).
dispute about a material fact is genuine if there is
sufficient evidence upon which a reasonable jury could return
a verdict for the non-moving party. See id. The
Court “is not to resolve disputed issues of fact but to
assess whether there are any factual issues to be
tried.” Wilson v. Nw. Mut. Ins. Co., 625 F.3d
54, 60 (2d Cir. 2010) (citation omitted). It is the moving
party's burden to establish the absence of any genuine
issue of material fact. Zalaski v. City of Bridgeport
Police Dep't, 613 F.3d 336, 340 (2d Cir. 2010).
non-moving party has failed to make a sufficient showing on
an essential element of his case on which she has the burden
of proof, then summary judgment is appropriate. Celotex
Corp. v. Catrett, 477 U.S. at 323. If the non-moving
party submits “merely colorable” evidence,
summary judgment may be granted. Anderson v. Liberty
Lobby, Inc., 477 U.S. at 249-50. The non-moving party
“must do more than simply show that there is some
metaphysical doubt as to the material facts, and may not rely
on conclusory allegations or unsubstantiated
speculation.” Brown v. Eli Lilly & Co.,
654 F.3d 347, 358 (2d Cir. 2011) (internal citations
omitted). The ...