Arnold Exhibit & Design, Inc. v. ABF Freight System, Inc.

—Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied defendant’s motion for summary judgment dismissing the complaint. Plaintiff commenced this action to recover damages for goods allegedly lost by defendant, a connecting carrier, in shipment from California to plaintiff’s office in New York. The bill of lading required plaintiff to file a timely notice of claim with either defendant or the issuing carrier as a condition precedént to recovery. That standard requirement is authorized by Federal law (49 USC § 11706 [e]) and is generally held to be mandatory (see, Chesapeake & Ohio Ry. Co. v Martin, 283 US 209; Georgia, Fla. & Ala. Ry. Co. v Blish Milling Co., 241 US 190; Bailen v Aero Mayflower Tr. Co., 144 AD2d 407). The bill of lading was the receipt for the goods delivered for transportation and the contract of carriage establishing the rights and duties of the shipper and carrier (see, Chase Manhattan Bank v Nissho Pac. Corp., 22 AD2d 215, affd 16 NY2d 999; Winkler Credit Corp. v United Pipe Nipple Co., 9 AD2d 620). Plaintiff is bound by its terms because those terms, which are standard, were accepted by the consignor as plaintiff’s agent (see, Universal Ltd. v Stem & Co., 34 AD2d 770; see also, 17 NY Jur 2d, Carriers, § 304; 1 Sorkin, Goods in Transit § 2.01 [7], at 2-13). Plaintiff may not avoid the terms of the bill of lading by bringing suit in tort rather than contract (see, Georgia, Fla. & Ala. Ry. Co. v Blish Milling Co., supra, at 197; American Synthetic Rubber Corp. v Louisville & Nashville R. R. Co., 422 F2d 462, 468; San Lorenzo Nursery Co. v Western Carloading Co., 91 F Supp 553, 555; see also, Clark-Fitzpatrick, Inc. v Long Is. R. R. Co., 70 NY2d 382, 389-390). In support of its motion, defendant submitted evidence establishing only that plaintiff did not file a timely notice of claim with it. Because defendant failed to establish that plaintiff also did not file a timely notice of claim with the issuing carrier (see, Germini v Southern Pac. Co., 209 App Div 442), defendant failed to demonstrate the absence of any material issues of fact (see, Ayotte v Gervasio, 81 NY2d 1062, 1063; 1068 Alvarez v Prospect Hosp., 68 NY2d 320, 324). (Appeal from Order of Supreme Court, Erie County, Flaherty, J.—Summary Judgment.) Present—Green, J. P., Pine, Wisner, Callahan and Fallon, JJ.