Opinion
570230/21
05-18-2022
Gold Town Corp., Plaintiff-Appellant, v. United Parcel Services, Inc. Defendant-Respondent, and Kenneth Ransom, Defendant.
Plaintiff, as limited by its briefs, appeals from so much of an order of the Civil Court of the City of New York, New York County (Ilana J. Marcus, J.), entered August 25, 2021, as granted defendant United Parcel Service's (sued as United Parcel Services, Inc.) ("UPS") pre-answer motion to dismiss the complaint against it.
PRESENT: Brigantti, J.P., Hagler, Michael, JJ.
PER CURIAM.
Order (Ilana J. Marcus, J.), entered August 25, 2021, insofar as appealed from, affirmed, with $10 costs.
Plaintiff's tort claims against UPS, including negligence, conversion and fraud, are based upon UPS' alleged failure to deliver or return a package containing a gold necklace that plaintiff had shipped to a customer (defendant Kenneth Ransom) in Tennessee. As such, the claims are preempted by the Federal Aviation Administration Authorization Act of 1994 ("FAAAA") (see 49 USC § 14501[c][1]; see also 49 USC § 41713[b][4][A]), which embraces all state claims related to "price, route, or service" of motor carriers of property, including UPS. Inasmuch as all of plaintiff's claims arise from UPS's failure to deliver the package as agreed, they are preempted (see e.g. Smith v. United Parcel Serv., 296 F.3d 1244, 1247 [11th Cir 2002]; AGG Enters. v Wash. County, 281 F.3d 1324, 1328-1329 [9th Cir 2002], cert denied 537 U.S. 822 [2002]; Rockwell v United Parcel Serv., Inc., 1999 WL 33100089 [US Dist Ct, VT 1999]; Eggleston v United Parcel Serv., Inc., 428 S.C. 373, 834 S.E.2d 713 [SC App 2019]).
Nor can plaintiff circumvent preemption by characterizing its claim as based upon UPS's representation that the package, which had been lost by UPS but later found, would be returned to the plaintiff. Regardless of how the claims are phrased or characterized, the acts plaintiff complains of arise from the failure to deliver and therefore, they are preempted (compare American Airlines, Inc. v Wolens, 513 U.S. 219 [1995] [frequent flier program]; Data Mfg. Inc. v United Parcel Serv., Inc., 557 F.3d 849 [8th Cir 2009] [re-billing fees]).
We note that plaintiff has not pleaded any breach of contract claim.
All concur