Gruen Industries, Inc., Appellant, v. R. F. Downing and Co., Inc., Defendant, and Cal Giunta, Doing Business as Price Trucking and Warehousing Co., Respondent, 21 A.D.2d 643

Order, entered on October 25, 1963, denying plaintiff’s motion for

summary judgment and granting the cross motion of the defendant Giunta for leave to amend his answer, unanimously reversed on the law, with $20 costs and disbursements to appellant, and plaintiff’s motion for

summary judgment granted, with $10 costs, the matter remitted for an assessment of the damages sustained by plaintiff based upon the value of the goods, and the cross motion for leave to amend the answer denied. The defendant, Giunta, resists plaintiff’s application for

summary judgment solely on the ground of custom and that an oral agreement had been made whereby his liability was to be limited to $50 for each of the cartons shipped regardless of the actual value of the goods therein contained. It is contended that whether or not such an agreement existed presents an issue of fact which can only ,be determined at a trial. However, before it may be concluded that such issue must be tried out, it must appear that the agreement, as alleged, is sufficient in law to limit the carrier’s liability as it purports to do.

It must be demonstrated that “ the shipper has been given the option or choice of contracting for the carrier’s services without any restriction on the carrier’s liability” (7 N. Y. Jur., Carriers, § 198, p. 184). “Limitation imposed without choice of rates between limited and unlimited liability is not valid ” (Kilthau v. International Mercantile Mar. Co., 245 N. Y. 361, 365). The papers submitted in opposition to

summary judgment are insufficient to show that the requisite “ option ” was available to the plaintiff. The defendant, Giunta, has failed to meet the requirement placed upon him to assemble and reveal his proofs in order to show that the matters set up in his proposed amended answer are real and capable of being established upon trial. Concur—Breitel, J. P., McNally, Stevens, Steuer and Staley, JJ.