In the early morning of October 5, 2004, William Heffelfinger suffered serious knee damage after falling while performing his duties as a shuttle bus driver at Albany International Airport.

Despite undergoing arthroscopic surgery in January 2005 to repair a torn medial meniscus of his left knee, it wasn't until November 2005 that Heffelfinger made an application for permission to file a late Notice of Claim.

In the Matter of Heffelfinger v. Albany Intl. Airport, the Albany County Supreme Court granted the request and directed the airport to accept service of Heffelfinger’s late notice.

According to General Municipal Law § 50-e (5), whether to allow a party to file a late notice of claim is a discretionary determination, which is to be premised upon such factors as whether:

• respondent acquired actual knowledge of the essential facts making up the claim within 90 days or a reasonable time thereafter;
• petitioner offers a reasonable excuse for the delay in filing the application; and
• granting the application would substantially prejudice the respondent.

On appeal, the Appellate Division, Third Department, believed that, even in the absence of substantial prejudice, it is imprudent to grant the request unless a litigant can show that the respondent acquired knowledge of the claim within a reasonable time.

According to the AD3, Heffelfinger was unable to establish that the airport timely acquired actual knowledge of the exact location of the accident and that “poor lighting” was one its causes.

While incident reports prepared immediately after the mishap noted that Heffelfinger tripped over a passenger’s bag, they omitted where that accident had occurred and neglected to mention that inadequate lighting was the cause of the injury sustained. Moreover, Heffelfinger provided no evidence that copies of those reports were ever furnished to the airport.

Finally, while Heffelfinger claimed that actual notice had been provided by his supervisor -- who had called airport -- the record failed to demonstrate what, if any, information had been conveyed.

The AD3 was also unmoved by Heffelfinger’s claim that he did not know the severity of his injuries given that they had been serious enough to require surgery.

The case seems to have been grounded from the start.

To download a copy of the Appellate Division's decision, please use the following link: Matter of Heffelfinger v. Albany Intl. Airport

Posted by Lucas A. Ferrara, Esq. at 12:00 PM | Permalink | TrackBacks (0) | Comments (0)

Ever dream of being an astronaut?

If so, we've got some great news for you. Outer space may finally be within your grasp.

Virgin Galactic -- a company founded by multi-billionaire, Richard Branson -- is reportedly constructing a series of spaceships which will transport passengers willing to pay a hefty fee to the outer edges of the earth's atmosphere.

Although the company's press releases and promotional literature describe the experience as "affordable space tourism," we beg to differ.  With tickets "starting" at $200,000 for the 2 1/2 hour voyage, we imagine only an elite few will be able to afford the trip's exorbitant costs.

There are currently three tiers of travelers that make up this exclusive Galactic group.   The "Founders," the first 100 scheduled to fly, were already required to pay the full $200,000 fare to the "spaceline," in advance.  (And, are advised that this list is currently "closed.")  The "Pioneers," are the next 1,000 travelers, who are being asked to deposit anywhere from $100,000 to $175,000. While "Voyagers," are being asked to remit a downpayment of some $20,000.

It's not like you're going to have a lot of time to amass the funds for the ticket price, flights are anticipated to begin departing late next year -- in 2008 -- from the "Mojave Spaceport," a location in the Californian desert.

Those of you who believe flying commercial aircraft presents enough of a challenge, may want to consider a much more inexpensive alternative.  "Astronaut wannabes" can experience the thrill of a simulated launch into deep space -- at the Walt Disney World (Epcot) attraction Mission: SPACE -- for a whole lot less cash and with plenty to spare for the Spaetzle, Schnitzel, and Frikadellen at the property's "Biergarten" restaurant.

To learn more about becoming a "private astronaut," and to secure your "space ticket," please click on the following link: http://virgingalactic.com/

Posted by Lucas A. Ferrara, Esq. at 3:25 PM | Permalink | TrackBacks (0) | Comments (0)

With the Labor Day holiday weekend fast approaching, many are wondering how the recently enhanced airport security procedures are impacting air travel. I am pleased to report that the process is not as bad as you might expect.

Just a few days ago, I caught a flight out of Newark, New Jersey, to Fort Lauderdale, Florida. Although there were certainly delays getting past the security checkpoints--since screeners are vigilantly inspecting all carry-ons and confiscating all types of liquids, gels, lotions and other comparable items--all in all, the process went quite smoothly.

Things are certain to go a lot quicker as travelers get acclimated to the new restrictions. According to the U.S. Department of Homeland Security's Transportation Security Administration (TSA), here are the only liquid- or gel-based substances currently permitted aboard aircraft:

small amounts of baby formula and breast milk if a baby or small child is traveling;
liquid prescription medicine with a name that matches the passenger's ticket;
up to 5 oz. (148ml) of liquid or gel low blood sugar treatment;
up to 4 oz. of essential nonprescription liquid medications including saline solution, eye care products and KY jelly;
gel-filled bras and similar prostethics;
gel-filled wheelchair cushions; and
life support and life sustaining liquids such as bone marrow, blood products, and transplant organs carried for medical reasons.

All other liquid- or gel-based items will not be allowed past the security checkpoints, so don't bother taking take them with you. (You'll avoid needless delay, a humiliating bag search, and disparaging looks from TSA personnel and fellow travelers.)

If you just can't leave home without your billy clubs, black jacks, brass knuckles, jubatons, mace/pepper spray, martial arts weapons, night sticks, nunchakus, stun guns/shocking devices, and throwing stars, you may want to store those items in your checked baggage. (They will not be permitted in carry-ons nor otherwise allowed in the cabin.)

In addition to your self defense weaponry, you may also want to check your "'tude" when interacting with the cabin crew. As a result of legislation signed by President George W. Bush, back in December of 2003, certain flight crew members are now permitted to carry firearms to defend against "criminal violence or air piracy." (Currently, only a pilot, flight engineer or navigator are permitted to pack a pistol.) While your friendly flight attendant, on the other hand, is likely to have been schooled in an array self defense techniques that can do some real damage to your person. (Interestingly, since the government views the details regarding the self defense program as "protected critical infrastructure information," and as "sensitive security information," training specifics are not publicly available. Additionally, all training participants are required to sign a three page "non-disclosure agreement," that would make any lawyer proud. As you might expect, a violation of the agreement subjects the discloser to, among other things, "administrative, disciplinary, civil or criminal action, as appropriate.")

So, the next time you're imperiously instructed to "return to your seat and fasten your seatbelt," it may be best to do so quickly and obediently...if you know what's good for you.

Happy trails!

For a complete list of "Permitted and Prohibited Items," promulgated by the U.S. Department of Homeland Security, Transportation Security Administration (TSA), please click on the following link:
http://www.tsa.gov/travelers/airtravel/prohibited/permitted-prohibited-items.shtm

For information regarding the TSA's "Federal Flight Deck Officers' Program," please click on the following link:
http://www.tsa.gov/lawenforcement/programs/ffdo.shtm

For information regarding the TSA's "Crew Member Self Defense Training Program," please click on the following link:
http://www.tsa.gov/lawenforcement/programs/self_defense_cmsd_programs.shtm

For a copy of the TSA's "Non-Disclosure Agreement," please click on the following link:
http://www.tsa.gov/assets/pdf/DHS_Form_11000-6_NDA.pdf

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NOTE: On September 26, 2006, after this piece was originally posted, TSA eased its prohibitions and now permits certain liquids, gels and lotions aboard aircraft, subject to certain size and packaging requirements. To view this updated information, please visit TSA's website using the first link provided above.

Posted by Lucas A. Ferrara, Esq. at 8:25 AM | Permalink | TrackBacks (0) | Comments (4)

Ever wonder what those frequent flyer miles are worth? Well, depending on whom you ask, you can expect an array of mathematic calculations ranging anywhere from a penny to nine cents per mile. Were you to inquire of attorney Charles Spiegel, he'd likely respond they were valueless, particularly after the outcome of his recent case.

In Spiegel v. Continental Airlines, Mr. Spiegel sued the airline for $2500, claiming "breach of contract" for the company's failure to honor his request to redeem 100,000 reward miles for a flight to Rome. On motion, the City Court of Yonkers dismissed Spiegel's case. On appeal, the Appellate Term, 9th and 10th Judicial Districts, affirmed the dismissal, noting as follows:

Plaintiff alleged that defendant breached its agreement in that it failed to permit him to redeem his frequent flyer miles for a flight. However, he was aware of the fact, from prior litigation involving defendant's "OnePass Program," that seat availability was limited and might not be available on all flights, and that usage of his frequent flyer mileage was subject to capacity control. He failed to demonstrate that defendant in any way breached the terms and conditions of its agreement

A review of the airline's "Travel & Upgrade Reward Rules," reveals that the number of reward seats available for redemption are exclusively within the company's discretion and control. Continental's policy provides, in relevant part, as follows:

Capacity Controls

Capacity-controlled seats are limited and may not be available on all flights. Reward usage, including upgrade travel, is subject to capacity controls, which may limit the number of seats available. If seats in the special fare class designated for rewards are not available, you may request an alternate flight or date. Standard Reward travel is subject to capacity controls determined and adjusted at Continental's sole discretion and there may not be Standard Reward seats available on all flights. It may be more difficult to reserve a Standard Reward seat at peak times of the year and/or to popular destinations. The actual number of reward seats can vary from flight to flight, or over time on a particular flight.

So, it seems to us, that neither Spiegel nor his case was destined to fly.

For a copy of the Appellate Term's decision in the Spiegel v. Continental Airlines, please click on the following link:
http://www.nycourts.gov/reporter/3dseries/2006/2006_50812.htm

Posted by Robert Finkelstein, Esq. at 8:25 AM | Permalink | TrackBacks (0) | Comments (0)

While the statistics fluctuate widely over time, the U.S. Department of Transportation reports that there is a "mishandled baggage rate" of roughly 1 per 100 passengers flying U.S. carriers. Considering those odds, it should come as no surprise that there is an entire line of cases devoted to airline liability in lost-baggage lawsuits.

An appellate decision which provides some insight into this area of law is Kodak v. American Airlines. In that case, Kenneth and Kaitlin Kodak lost two pieces of luggage on an international flight. A District Court Judge dismissed the Kodaks' case, finding that their claim exceeded the company's liability, as established by international treaty. On appeal, the appellate court reversed the trial court and found the monetary limitation inapplicable due to the airline's failure to establish that the passenger ticket or baggage check had contained the appropriate disclaimer language and that either of those items had been delivered to the Kodaks.

Before remanding the case for an assessment of damages incurred by the Kodaks, the Appellate Term, 9th and 10th Judicial Districts, provided a methodology for calculating the award:

The measure of plaintiffs' damages for the loss of their personal property is the actual value of such property taking into account the original cost and relative newness and the extent, if any, to which it has deteriorated or depreciated through use, damage, age, decay or otherwise...Moreover, the testimony of the plaintiffs may be credited as to the personal property involved....

A "Kodak moment," wouldn't you agree?

Before you cringe from that corn, on April 7, 2006, the Appellate Term, 9th and 10th Judicial Districts, again reviewed a baggage-liability claim brought against the same airline. In Korn v. American Airlines, Inc., the District Court awarded Abe Korn the sum of $2500, the governing limit of liability as set forth on the passenger's ticket and ticket jacket. The airline appealed, contending that the customer had failed to prove the value of the missing items with competent evidence. (The airline questioned the validity of the purchase receipt presented since the document did not reflect that any sales tax had been charged.) Citing the flexibility that exists within the context of small claims' court cases, the Appellate Term affirmed the trial court's determination and noted as follows:

In the case of personal property such as wearing apparel, the owner of such property, who is familiar with its quality and condition, may testify as to its value...With respect to the value of the items of clothing lost, the price paid for such articles of clothing when new establishes their value at the time of purchase....

Certainly, Korn cobbed a victory in that case.

Interestingly, the 2006 Airline Quality Rating, a research report sponsored by the Aviation Institute at the University of Nebraska at Omaha and by Wichita State University, reveals that the U.S. airlines with the best on-time performance, and lowest number of denied boardings, mishandled baggage, and customer complaints were JetBlue, Air Tran, Independence Air, and Southwest Airlines. American and American Eagle rated tenth and fourteenth, respectively. Not surprisingly, the latter two airlines scored poorly in the baggage-handling category.

For a copy of the Kodak case, please click on the following link:
http://www.nycourts.gov/reporter/3dseries/2005/2005_25403.htm

For a copy of the Korn case, please click on the following link:
http://www.courts.state.ny.us/reporter/3dseries/2006/2006_26134.htm

For a copy of the 2006 Airline Quality Rating study, please click on the following link:
http://www.aqr.aero/aqrreports/AQR2006final.pdf

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[Note: In the early 1970's, National Airlines implemented a controversial ad campaign which featured smiling female flight attendants (then called "stewardesses") who would offer a salutation, volunteer their first name, and then immediately follow that introduction with the phrase, "Fly me!" As part of what many viewed as a "sexist" pitch, the ladies' names were also painted on the noses of airplanes and the employees were required to wear "Fly Me" buttons on their uniforms.]

Posted by Lucas A. Ferrara, Esq. at 8:25 AM | Permalink | TrackBacks (0) | Comments (0)