Opinion
February 10, 1976
Order, Supreme Court, New York County, entered on June 2, 1975, and judgment entered thereon on June 11, 1975, affirmed on the opinion of Saypol, J. Respondent shall recover of appellants one bill of $60 costs and disbursements of these appeals.
Concur — Stevens, P.J., Kupferman, Murphy and Lane, JJ.; Silverman, J., dissents in the following memorandum: I think there are triable issues of fact as to (a) whether there was a valid contract for limitation of liability and (b) as to the amount of damages. As to (a), there are questions as to when the property was delivered to the warehouseman in relation to the date of the warehouse receipt; whether the failure by plaintiff's agent to protest for six months after receiving the warehouse receipt and invoice, both of which limited liability, was not an acquiescence in that limitation; whether, particularly in light of the invoice stating prominently in typewriting "Note: Our liability limited to 30¢ per lb. per article Unless you authorize insurance and specify to us in writing the value for insurance.", plaintiff was not offered a choice of unlimited liability for a higher rate or at least there was compliance with subdivision (2) of section 7-204 of the Uniform Commercial Code; whether codefendant Fisher Brother, Inc., was not a subagent of, or perhaps even a successor to, defendant Acme Van so as to be protected by a valid Acme Van limitation of liability (Schoeffer v United Parcel Serv. of N.Y., 277 App. Div. 569; Berger v 34th St. Garage, 3 N.Y.2d 701). As to (b), the facts appear to be exclusively within the knowledge of plaintiff, making this an inappropriate issue for summary judgment (Utica Sheet Metal Corp. v Schecter Corp. 25 A.D.2d 928; Siegel, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR, C3212:19, p 438). As liability is conceded, I would modify so as to deny the motion insofar as it relates to the amount of damages and remand the case for trial of the issue of damages.