Bush v. Protravel International, Inc.

746 N.Y.S.2d 790 (2002)

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Nature of the Case

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Facts

P contacted Micato about booking a safari. Micato referred P to D a retail travel agent, to arrange for a reservation on one of the various safaris offered by Micato. P booked an African safari travel package for herself and her fiancé through D with Micato. P gave D an initial 20% deposit in the amount of $1,516. The trip was scheduled to begin on November 14, 2001. As a result of the attack on the World Trade Center, other terrorism alerts and airline scares, P and her fiancé decided almost immediately to cancel their trip. P endeavored to notify D of her decision, but, as a result of the interruption of telephone service between Staten Island, where she had fled to safety, and Manhattan, where D maintained an office in midtown, she was physically unable to communicate her cancellation order until September 27, 2001. Ds refused to return her deposit and P sued. D presented evidence that alleged that P signed and agreed to Ds' cancellation policies. A cancellation order given before September 14, 2001, the 61st day prior to departure, would have subjected P to a $ 100 penalty. Any cancellation after that date but on or before October 15, 2001, would subject P to the greater 20% penalty under the cancellation policy. P states in her affidavit that, beginning on September 12, 2001, and continuing for days thereafter, she attempted to contact the travel agency and that due to difficulties with telephone lines, access to Manhattan and closures of its office, she was unable to speak to someone from D until September 27, 2001. No evidence is offered to dispute P's claim that it was virtually impossible for many days after the terrorist attack to place a call from Staten Island if such call was transmitted via the telephone trunk lines in downtown Manhattan. Ds moved for summary judgment.