Supreme Court of New York, Appellate Term, First Department

May 18, 2022, Decided

570230/21

Reporter

2022 N.Y. Misc. LEXIS 2063 *; 2022 NY Slip Op 22149 **; 2022 WL 1563349

 [**1]  Gold Town Corp., Plaintiff-Appellant, against United Parcel Services, Inc. Defendant-Respondent, and Kenneth Ransom, Defendant.

Notice: THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION.

 THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.

Prior History:  [*1] Plaintiff, as limited by its briefs, appeals from so much of an order of the Civil Court of the City of New York, New York County (Ilana J. Marcus, J.), entered August 25, 2021, as granted defendant United Parcel Service’s (sued as United Parcel Services, Inc.) (“UPS”) pre-answer motion to dismiss the complaint against it.

Core Terms

preempted, package, failure to deliver

Judges: PRESENT: Brigantti, J.P., Hagler, Michael, JJ.

Opinion

Per Curiam.

Order (Ilana J. Marcus, J.), entered August 25, 2021, insofar as appealed from, affirmed, with $10 costs.

Plaintiff’s tort claims against UPS, including negligence, conversion and fraud, are based upon UPS’ alleged failure to deliver or return a package containing a gold necklace that plaintiff had shipped to a customer (defendant Kenneth Ransom) in Tennessee. As such, the claims are preempted by the Federal Aviation Administration Authorization Act of 1994 (“FAAAA”) (see 49 USC § 14501[c][1]; see also 49 USC § 41713[b][4][A]), which embraces all state claims related to “price, route, or service” of motor carriers of property, including UPS. Inasmuch as all of plaintiff’s claims arise from UPS’s failure to deliver the package as agreed, they are preempted (see e.g. Smith v. United Parcel Serv., 296 F3d 1244, 1247 [11th Cir 2002]; AGG Enters. v Wash. County, 281 F3d 1324, 1328-1329 [9th Cir 2002], cert denied 537 US 822, 123 S. Ct. 107, 154 L. Ed. 2d 31 [2002]; Rockwell v United Parcel Serv., Inc., 1999 U.S. Dist. LEXIS 22036, 1999 WL 33100089 [US Dist Ct, VT 1999]; Eggleston v United Parcel Serv., Inc., 428 SC 373, 834 SE2d 713 [SC App 2019]).

Nor can plaintiff circumvent preemption by characterizing its claim as based upon UPS’s representation that the package, which [*2]  had been lost by UPS but later found, would be returned to the plaintiff. Regardless of how the claims are phrased or characterized, the acts plaintiff complains of arise from the failure to deliver and therefore, they are preempted (compare American Airlines, Inc. v Wolens, 513 US 219, 115 S. Ct. 817, 130 L. Ed. 2d 715 [1995] [frequent flier program]; Data Mfg. Inc. v United Parcel Serv., Inc., 557 F3d 849 [8th Cir 2009] [re-billing fees]).

We note that plaintiff has not pleaded any breach of contract claim.

All concur

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

End of Document