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METPATH v. BIRMINGHAM INS.

86 A.D.2d 407 (1982)

Metpath, Inc., Appellant-Respondent, v. Birmingham Fire Insurance Company of Pennsylvania, Respondent-Appellant

Appellate Division of the Supreme Court of the State of New York, First Department.

May 13, 1982

Attorney(s) appearing for the Case

Charles H. Miller of counsel (Maura J. Wogan and Robert J. Kipnees with him on the brief; Marshall Bratter, Greene, Allison & Tucker, attorneys), for appellant-respondent.

Michael A. Ellenberg of counsel (LeBoeuf, Lamb, Leiby & MacRae, attorneys), for respondent-appellant.

SULLIVAN, J. P., and FEIN, J., concur with ASCH, J.; SILVERMAN and LYNCH, JJ., dissent in an opinion by SILVERMAN, J.

ASCH, J.

Plaintiff Metpath, Inc. (Metpath), supplies clinical laboratory services nationwide but does its primary laboratory work in New Jersey. It utilizes air transportation for shipment of specimens to its laboratory. Many of its services must be performed within 24 hours after obtaining a specimen to prevent spoilage and to obtain quick responses.

When an air traffic controllers' strike was threatening...

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