BUCHOLTZ v. SIROTKIN TRAVEL, N.Y. Misc., Judgment, Law, casemine.com

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Attorney(S)

Harold Holtman for appellant. Paul G. Whitby for respondent. Arthur L. Schiff for American Society of Travel Agents, Inc., amicus curiae.

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Smart Summary

Factual and Procedural Background

This case arises from a small claims action in which the plaintiff, Helen Bucholtz, sought damages from the defendant, Sirotkin Travel, Ltd., a travel agency, due to problems with travel reservations. It is undisputed that the travel agency used a wholesaler to assemble a "package tour." The defendant appealed a decision from the Small Claims Part of the District Court of Nassau County, challenging liability for the wholesaler’s performance.

Legal Issues Presented

Whether the travel agency (defendant) is liable to the customer (plaintiff) for failures in performance when the agency uses a wholesaler to arrange travel.
Whether the customer’s consent, express or implied, to the use of a wholesaler affects the allocation of liability between the travel agency and the wholesaler.
Whether knowledge of the practice of employing wholesalers can be imputed to the customer, thereby constituting implied consent.

Arguments of the Parties

Appellant's Arguments

The defendant travel agency argued that because it used a wholesaler to arrange the package tour, only the wholesaler should be liable for any default in performance.

Respondent's Arguments

This information was not available in the provided opinion.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Antar v. Trans World Airlines, 66 Misc.2d 93, affd. 37 A.D.2d 921	Establishes agency principles relating to the relationship between retail travel agents, wholesalers, and customers.	Used to support the principle that a retail travel agent without proof of an independent relationship with a wholesaler is considered the agent of the customer.
National S.S. Co. v. Sheahan, 122 N.Y. 461	Principle regarding liability of an agent who acts with the principal’s consent and reasonable diligence in selecting a third party.	Applied to hold that if the travel agent acts with the customer’s consent and reasonable diligence, the agent is not liable for the wholesaler’s default.
2 N.Y. Jur., Agency, §§ 151, 153, 156	Agency law principles on consent, liability, and imputation of knowledge.	Guided the court’s determination on whether the plaintiff consented to the wholesaler’s employment and on the resulting allocation of liability.
Unger v. Travel Arrangements, 25 A.D.2d 40, 48	Consideration of whether knowledge of an industry practice can constitute implied consent.	Referenced to support the conclusion that knowledge of the wholesaler practice is not pervasive enough to imply consent.

Court's Reasoning and Analysis

The court analyzed the allocation of responsibility under agency law principles, focusing on the relationship among the customer, the retail travel agent, and the wholesaler. It emphasized that absent proof of an independent relationship between the travel agent and the wholesaler, the travel agent is deemed the customer’s agent. The court reasoned that if the travel agent acts with the customer’s consent—either express or implied—and exercises reasonable diligence in selecting the wholesaler, it is not liable for the wholesaler’s failures. Conversely, absent such consent, the travel agent remains liable for damages caused by the wholesaler.

The court found that the plaintiff did not consent to the wholesaler’s employment and that knowledge of this practice could not be imputed to her, as she was not informed until after the reservations were made and the practice is not so widely known to compel implied consent. The court thus upheld the lower court’s determination and rejected the defendant’s contention that only the wholesaler should be liable.

Holding and Implications

Judgment affirmed, without costs.

The court affirmed the lower court’s decision, holding that the travel agency was liable to the customer because the customer did not consent to the wholesaler’s involvement. The decision directly affects the parties by maintaining the travel agency’s liability but does not establish new precedent beyond applying established agency law principles.

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HELEN BUCHOLTZ, Respondent, v. SIROTKIN TRAVEL, LTD., Appellant

MEMORANDUM.

In this small claims action, plaintiff seeks to cast defendant travel agency into damages for reservations that went awry. Since it is undisputed that the travel agency had utilized the services of a wholesaler who had put together a "package tour," defendant contends on this appeal that the wholesaler alone is liable for any default in performance.

Allocation of responsibility in the case before us should proceed upon the principles of agency law. In our opinion, where, as here, there is no proof of an independent relationship between the retail travel agent and the wholesaler, the travel agent should be considered the agent of the customer. (See Antar v. Trans World Airlines, 66 Misc.2d 93, affd. 37 A.D.2d 921.) If, in using a wholesaler to make the travel arrangements, the travel agent acts with the consent, express or implied, of the principal-customer, then, if reasonable diligence has been used in its selection, the travel agent will not be responsible for any dereliction of duty on the part of the wholesaler. (See National S.S. Co. v. Sheahan, 122 N.Y. 461; 2 N.Y. Jur., Agency, § 153.) If, on the other hand, the travel agent acts without such consent, he will be responsible to the customer for any damage sustained as a result of the acts of the wholesaler. (See 2 N.Y. Jur., Agency, § 156.)

The court below, in applying these principles, found that the plaintiff did not consent to the employment of the wholesaler. Although its opinion did not so state, the record indicates that the court also declined to hold that knowledge of the practice of employing wholesalers should be imputed to the plaintiff. (Cf. 2 N Y Jur., Agency, § 151.) We see no reason to disturb this determination. The record supports a finding that plaintiff was not informed of the existence of the wholesaler until after the reservations were agreed upon and it cannot be said that knowledge of this practice is so pervasive among the public as to compel a finding of implied consent. (Cf. Unger v. Travel Arrangements, 25 A.D.2d 40, 48.)

We find no merit in defendant's remaining contention.

Concur: HOGAN P.J., FARLEY and GAGLIARDI, JJ.

Judgment affirmed, without costs.

BUCHOLTZ v. SIROTKIN TRAVEL