Air India v. Wm. Becker Travel Bureau, Inc. , 56 A.D.2d 811 ( 1977 )

Order, Supreme Court, New York County, entered August 12, 1976, denying plaintiff’s motion for partial summary judgment to dismiss defendants’ affirmative defenses and to direct the defendant Becker Travel Bureau to pay damages for breach of contract and conversion, unanimously affirmed. Respondents shall recover of appellant $60 costs and disbursements of this appeal. The plaintiff is a member of the International Air Transport Association (IATA) and bound by its rules. The defendant Becker Travel Bureau is a travel agency which has a passenger sales agency agreement with IATA, and also acted as the sales agent for the plaintiff. The complaint seeks damages for tickets sold in 1975 for flights with the plaintiff air line and for failure to remit the proceeds. The affirmative defense is that there was a discounting of tickets scheme in violation of law and IATA regulations (cf. Matter of State of New York v Scottish-Amer. Assn., 52 AD2d 528), and further, that under the agreement between the parties, the defendant was entitled to an offset because of fictitious sales reports in order to avoid IATA regulations. There are many issues of fact with respect to the question of illegality (see McConnell v Commonwealth Pictures Corp., 7 NY2d 465; Birnbaum v Schuler, 56 AD2d 556), and when and if it ceased, and what the actual arrangements between the parties were. Summary judgment is not warranted. Concur—Stevens, P. J., Kupferman, Murphy, Silverman and Markewich, JJ.