The College of Staten Island, one of the senior colleges of the City University
of New York, sponsored a ski trip to Utah, in early January 1995. The claimant
was one of the participants on the trip. He seeks to recover the cost he
alleges he paid for the trip, on the ground that the defendant did not fulfill
all of the terms of the agreement concerning the trip.
The agreement which is the subject of the claim is embodied in a flyer which
describes the particulars of the trip, and its cost. The flyer (Exhibit 1)
states that, for "Approx. $850 per person tax included" the program includes
round trip airfare between Newark, New Jersey and Salt Lake City, Utah,
transportation to Park City, Utah, 4 ski lessons, and "7 Nights Condominium
Lodging (Based on full unit occupancy)." The flyer also specified 5 days of
skiing including 3 days at Park City and "1 day lift and bus to Alta" and "1 day
lift and bus to Snowbird." Park City, Alta and Snowbird are 3 separate ski
The basis for this claim is the claimant's allegation that during the trip,
plans were changed to eliminate the bus trip and lift ticket to Snowbird.
Four of the 30 participants on the trip testified at trial, including the
claimant and Evan Pickman, an Associate Professor at the College of Staten
Island, who organized the trip on behalf of the defendant. Although there were
significant discrepancies in the detail of their testimony, what emerges,
without conflict, from their testimony is that during the course of the trip, a
clear majority of the participants had decided they did not want to go to
Snowbird, which was scheduled for the last full day of the trip. By the morning
of the day before the scheduled trip to Snowbird, it had been arranged that 5 of
the participants, including the claimant, would use a jeep Mr. Pickman had
rented, to make the trip to Snowbird, and that with respect to the rest of the
participants, Mr. Pickman had arranged to exchange the Snowbird lift tickets for
lift tickets at Park City, or Deer Valley, another nearby ski area. The
claimant testified that he agreed, albeit reluctantly, to take the jeep to
Snowbird. It was his testimony that the major reason he had gone on the trip
was the opportunity to ski at Snowbird, a more challenging area than the
It is also clear from the testimony of the witnesses, that by the morning of
the same day, Mr. Pickman had determined that each participant would have to pay
an additional $70 for the cost of lodging. This additional cost was the result
of fewer people having gone on the trip than anticipated when he had made
commitments for the lodging arrangements. The Court is satisfied from the
evidence presented, including the testimony of Gerald Principe, an officer of
Sno-Search, the travel agency which had planned and arranged the trip, that this
calculation was correct.
, Exhibits 3, F, I and G.
While they disagreed as to when the following occurred, both the claimant and
Mr. Pickman testified that in the early morning hours of the last full day of
the trip, Mr. Pickman refused to give the claimant the lift ticket for Snowbird,
and the keys to the jeep, unless the claimant paid him the additional $70. The
claimant refused. He left Utah that day, returning home a day early.
The claimant contends that the foregoing constitutes a bad faith breach of the
agreement, by the defendant, which entitles him to recover the full amount he
paid for the trip.
In determining whether there has been such a breach, as with any contract, the
terms of the agreement involved here must be given "a practical interpretation .
. . so that the parties' reasonable expectations are realized."
Sunrise Mall Associates v Import Alley of Sunrise Mall, Inc
., 211 AD2d
Upon the facts presented, there has been no such breach of the terms of the
agreement, as articulated in the flyer. Rather, it is clear from the credible
evidence that the change in plans resulted from the fact that a large majority
of the 30 persons on the trip did not want to go to Snowbird. The testimony of
one of the participants, Salvatore Mingoia, confirmed Mr. Pickman's testimony
that most of the people did not want to go to Snowbird, but that Mr. Pickman had
indicated that if more than 5 wanted to go to Snowbird, they all would go, since
the jeep only held 5 people.
It is not disputed that Mr. Pickman had obtained lift tickets for Snowbird. Nor
is it disputed that, in the end, the claimant was afforded the opportunity to
ski at Snowbird. And even if the claimant had been deprived of that
opportunity, an alternative was provided, namely skiing at Park City or Deer
Valley. Upon the credible evidence, the cost of skiing at either of those
places exceeded the cost at Snowbird. See
, Exhibit 3. So that even if
the failure to provide transportation by bus to Snowbird were to be considered a
breach of the agreement, the measure of damages would preclude any recovery by
the claimant. Jacob & Youngs, Inc. v Kent
, 230 NY 239, 244 [the
measure of damages is "the difference in value, which would be either nominal or
Mr. Pickman's refusal to give the claimant the lift ticket for Snowbird, and
the keys to the jeep, until he paid the additional $70, does not constitute a
breach of the agreement. It is undisputed that the agreement contemplated the
possibility of a payment in addition to $850, for lodging depending upon how
many people actually participated.
All but 3 of the participants paid the $70 by the end of the day before the
claimant left. There is no basis to question the legitimacy of the additional
charge, either as to its amount, or as to the fact that Mr. Pickman was entitled
to receive it. The flyer clearly stated the cost of the trip to be
approximately $850, and that lodging, included in that cost, was based upon full
occupancy. The "Information, Rules and Regulations" concerning the trip
(Exhibit B), which the claimant signed, stated: "Approximate cost is $850."
Although he testified that he had suggested, in a conversation with Mr. Pickman
in advance of the trip, that he try to keep the cost of the trip down, he was
aware, from that conversation, that because of the number of persons
participating, it was likely that there would be an additional charge He
testified that he was told by Mr. Pickman, on the second or third day of the
trip, that the additional cost had been calculated to be $70, and that it was
to be paid before the flight home. There was no evidence that he questioned the
legitimacy of the additional charge.
Upon all of the evidence, therefore, there was no breach of contract by the
All motions made at trial not specifically ruled upon are denied.
In accordance with the foregoing, the claim is dismissed.
LET JUDGMENT BE ENTERED ACCORDINGLY.