New York State Court of Claims

New York State Court of Claims

HAYES v. THE CITY UNIVERSITY OF NEW YORK, #2000-014-107, Claim No. 94999


Claim seeking damages for the defendant's alleged failure to fulfill the particulars of a ski trip to Utah is dismissed.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

S. Michael Nadel
Claimant's attorney:
John J. Hayes, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Carol C. Poles, Esq., Assistant Attorney General
Third-party defendant's attorney:

Signature date:
July 13, 2000
New York

Official citation:

Appellate results:

See also (multicaptioned case)


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 areas.

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 others.

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.
See, 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 711.
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.[1]
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 nothing."]
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.[2]
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 defendant.

All motions made at trial not specifically ruled upon are denied.

In accordance with the foregoing, the claim is dismissed.


July 13, 2000
New York, New York

Judge of the Court of Claims

[1]The claimant's testimony was to the same effect, although he testified that the discussion took place several days earlier. He also testified that Mr. Pickman attempted to influence the participants to "vote" against going to Snowbird. Mr. Mingoia testified that Mr. Pickman tried to accommodate everybody. Mr. Mingoia also testified that he was one of those who took the jeep to Snowbird. According to him, they never arrived there due to an avalanche which blocked the road.
[2]Mr. Pickman testified that the claimant paid $700 in advance of the trip, and that he paid $150 on the day the trip started. The claimant introduced evidence (Exhibit 2) that he had paid $1000 in advance of the trip, $100 of which was a deposit for his brother, Rich, who did not go on the trip; the payment was forfeited. On cross examination, the claimant testified that he could not recall whether any of the remaining $900 had been paid for another brother, Bob, who went on the trip. It was not suggested by the claimant that he refused to pay the $70 because he had already paid more than $850.