Lerner v. Karageorgis Lines, Inc. , 108 A.D.2d 648 ( 1985 )

Kupferman, J.,

dissents in a memorandum as follows: I would affirm the determination at Special Term which denied defendant’s motion for summary judgment.

While I would agree with Special Term that the New York State law, CPLR 4544, entitled “Contracts in small print”, should apply, it is unnecessary to reach this point.

The New York law requires eight-point type. It cannot be gainsaid that the type on the passenger ticket is four-point type. The Federal statute, 46 USC § 183b (a), which allows a passenger agreement to have a short Statute of Limitations, does not interfere with the general law that any contract should be readable. Four-point type requires a magnifying glass. Therefore, applying Federal law or State law, the type is too small for the provision to be enforceable.

Appropriate here is the following Second Circuit language: “Judge MacMahon appropriately characterized the ‘notice’ to the passengers in his pithy conclusion as ‘camouflaged in Lilliputian print in a thicket of “Conditions of Contract” * * * Indeed the exculpatory statements on which defendant relies are virtually invisible. They are ineffectively positioned, diminutively sized, and unemphasized by bold face type, contrasting color, or anything else. The simple truth is that they are so artfully camouflaged that their presence is concealed.’ ” (Lisi v Alitalia-Linee Aeree Italiane, 370 F2d 508, 514, affd 390 US 455.)

Accordingly, there should be affirmance.