Klakis v. Nationwide Leisure Corp. , 422 N.Y.S.2d 407 ( 1979 )

Order, Supreme Court, New York County, entered December 11, 1978, which, inter alia, granted the cross motion of defendants Nationwide Leisure Corporation and Stuart Graff for summary judgment dismissing the complaint as against them and granted the motion of Capitol International Airways dismissing the first and third causes of action as against it, and denied plaintiffs’ motion for partial summary judgment on the second cause of action, modified, on the law, to the extent of denying summary judgment to Nationwide and denying summary judgment as to the individual defendant Graff on the first and third causes of action, reinstating the first and third causes of action against the defendant Capitol, and otherwise affirmed, without costs or disbursements. Marion Klakis purchased a charter tour vacation from the defendant Nationwide Leisure Corporation which included round trip charter jet flights with the defendant Capitol International Airways. The vacation was to last for four nights and five days, and included accommodations at hotels in Nassau/Paradise Island. The tour was scheduled to leave from John F. Kennedy International Airport on January 22, 1978 at 6:00 a.m.; instead, it left at 9:00 a.m. on January 23. Those taking the tour received a vacation package of three nights and two days rather than the advertised four nights and five days. In addition, those on the tour were only able to occupy their rooms late on the day of arrival and had to vacate their rooms on the morning of their departure date, rather than just before flight time. Their departure from Nassau was punctuated by multiple annoying delays. The plaintiffs brought this action on their own behalf and purportedly on behalf of all others similarly situated. There are three causes of action sought to be reviewed on this appeal. The first alleges that Nationwide, Capitol, and the individual Graff fraudulently misrepresented the nature of the transportation to be afforded and its scheduling. The second alleges breach of contract, and the third seeks rescission and return of all moneys paid based on the fraudulent misrepresentation of the defendants. Plaintiffs moved at Special Term for class action certification and partial summary judgment on the second cause of action. Nationwide and Graff moved for summary judgment dismissing the complaint. Capitol, in separate papers, moved for dismissal of the complaint as against it, and for other relief. Special Term denied class action status, denied plaintiffs’ motion for partial summary judgment, granted the motion of Nationwide and Graff to dismiss the complaint against them, and granted Capitol’s motion only to the extent of dismissing the first and third causes of action as against it. We would modify the order of Special Term to the extent of denying Nationwide’s motion to dismiss the complaint and denying the individual Graffs motion as to the first and third causes of action. We would also reinstate the first and third causes of action against the defendant Capitol. On January 18 and 19, a few days before the scheduled departure, there was a major snowstorm. The corporate defendants relied on the provisions in their literature and contracts, which excluded responsibility for delays or changes in departure time due to adverse weather conditions. Capitol further claims that there is no privity of contract between the plaintiffs and it. The alleged misrepresentations claimed in the complaint include the dates and scheduling of departure from both New York City and Nassau. Whether these misrepresentations are fraudulent cannot be ascertained from the facts in the record as they have been developed thus far, and it would therefore be premature to dismiss the complaint against Nationwide and Graff. Similarly, the absence of an evidentiary showing of reasons for the delays precludes the granting of summary judgment to plaintiffs on the second cause of action. As to Capitol, the facts as to its relationship with Nationwide have not been adequately developed at this time, prior to completion of discovery, to justify dismissal of the contract cause of action. We note that the allegations in the complaint at bar against the individual defendant Graff are similar in content to the allegations in a complaint against the individual Graff recently reviewed by this court in Dupack v Nationwide Leisure Corp. (70 AD2d 568). The court in that case found that there was sufficient stated in the complaint against Graff to withstand its summary dismissal against that individual defendant except as to the cause of action alleging breach of contract. We conclude that dismissal of the complaint, therefore, against the individual defendant Graff at this time, with regard to the other causes of action, would be premature. We note, however, that class action status was properly denied by Special Term. There appear to be but 21 tourists who have not yet settled their claims. Also, it has not been shown that the complaints of the purported class members are the same as, or typical of, those of the plaintiffs (see CPLR 901). We have modified the order of Special Term accordingly. Our disposition of this appeal is, of course, without prejudice to the parties’ renewing their motions for the relief requested after further discovery proceedings have been conducted. Concur—Kupferman, J. P., Sandler, Sullivan and Lane, JJ.