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eBook details

• Title: Matter State New York v. Daro Chartours
• Author : Supreme Court of New York
• Release Date : January 21, 1979
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 64 KB

Description

Appeal from a judgment of the Supreme Court at Special Term, entered September 1, 1978 in Albany County, which granted petitioners application in a proceeding pursuant to subdivision 12 of section 63 of the Executive Law and article 10-A of the General Business Law, permanently enjoined respondents from engaging in certain acts and ordered respondents to pay petitioner $5,000 to be used for restitution of aggrieved customers of respondents. Appellant Stein, appealing herein pro se, was president of Daro Chartours, Inc. (Daro). Daro was engaged in the business of selling vacation trips by itself and through independent travel agents. These trips were purchased by Daro from tour operators who arranged for transportation and accommodations. On December 27, 1977, Daro had contracted to purchase from BTC Tours, Inc. (BTC), a tour operator, seven tour charters to Antigua, one scheduled to leave every week from February 12, 1978 to March 26, 1978. The last four tour charters were subsequently canceled because Daro failed to timely make the required advance payments. Special Term, in awarding judgment in favor of petitioner without trial, found violations of the Truth in Travel Act (General Business Law, art 10-A) and subdivision 12 of section 63 of the Executive Law in appellants failure to timely pay the airlines, causing cancellation of tours, and in failing to refund moneys to customers for a period of six months. Appellant first contends that questions of fact exist making the grant of judgment without trial improper. We disagree. Where, in a special proceeding as here, the petition and supporting papers contain sufficient allegations of fact to merit the relief requested and the respondents have raised no triable issues of fact by an evidentiary showing, but only assert conclusory statements in a general denial, judgment without trial is proper (Matter of Lefkowitz v McMillen, 57 A.D.2d 979). The judgment must, therefore, be affirmed. Appellants claim that the judgment of Special Term was based on misrepresentations contained in petitioners papers is without merit. The record reveals that Special Term did not base its judgment on any of the facts which appellant alleges to have been misrepresentations. Appellants contention that Federal law has pre-empted State action in the matters herein covered by the Executive Law and the Truth in Travel Act is without merit. It is permissible for State law to have an impact on interstate commerce (Huron Cement Co. v Detroit, 362 U.S. 440). The only limitations on State impact consistently recognized have been that "the [State] regulation not discriminate or place an embargo on interstate commerce, that it safeguard an obvious state interest, and that the local [72 A.D.2d 872 Page 873]

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