Opinion
May 13, 1965
Order, entered on June 17, 1964, granting plaintiff's motion, made pursuant to CPLR 3211 (subd. [b]), to dismiss the first and second separate and partial defenses pleaded in the answer, unanimously reversed, on the law, with $30 costs and disbursements to appellant and the motion denied. The stricken defenses in this wrongful death action plead the Warsaw Convention in limitation of liability. The tickets which were issued to the decedents make sufficient reference to the applicability of the Convention ( Seth v. British Overseas Airways Corp., 329 F.2d 302, cert. den. 379 U.S. 858; Eck v. United Arab Airlines, 20 A.D.2d 454, 457 [n. 2], revd. on other grounds, 15 N.Y.2d 53). Special Term, in our opinion, was not warranted in relying, in the present context, on definitions of international air transportation adopted for Federal tax purposes (U.S. Code, tit. 26, § 4262), and on this record we cannot agree that a trial of the issues raised by the defenses is not required. As the foregoing implies, other arguments in support of the motion have been found lacking in merit.
Concur — Botein, P.J., Valente, McNally, Stevens and Steuer, JJ. [ 43 Misc.2d 856.]