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Rosenberg v. United Parcel General Services Co.

United States District Court, S.D. New York

February 6, 2017



          Vincent L. Briccetti United States District Judge

         Plaintiff Avigail Rosenberg brings this action against defendant United Parcel Service General Services Co., a/k/a United Parcel Service, Inc. d/b/a UPS[1] (“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.

         Before the Court is UPS's motion for summary judgment. (Doc. #25).

         For the following reasons, the motion is GRANTED.

         The Court has subject matter jurisdiction under 28 U.S.C. § 1331.


         UPS 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.

         On May 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).

         UPS 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.

         After 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.

         I. Legal Standard

         The 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).

         A fact 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).

         A 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).

         If the 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 ...

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