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STRATEGIC RISK v. FED EXPRESS

253 A.D.2d 167 (1999)

686 N.Y.S.2d 35

Strategic Risk Management, Inc., Individually and on Behalf of All Others Similarly Situated, Appellant, v. Federal Express Corporation, Respondent

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

March 2, 1999

Attorney(s) appearing for the Case

I. Stephen Rabin of counsel (Jacqueline Sailer on the brief; Rabin & Peckel, L. L. P., and The Law Office of Leo W. Desmond, attorneys), for appellant.

Debra A. Shields and Eliot S. Jubelirer of counsel (Desmond T. Barry, Jr., Connie Lewis Lensing and Thomas F. Donaldson, Jr., on the brief; Condon & Forsyth, L. L. P., Morgenstein & Jubelirer and Federal Express Corporation, attorneys), for respondent.

SULLIVAN, J. P., LERNER and RUBIN, JJ., concur.

TOM, J.

Plaintiff contends that the defendant carrier improperly collected a tax, as part of its rate, even though the taxing statute had temporarily lapsed. To the extent it seeks relief as a taxpayer, plaintiff is in the wrong forum and the claims are preempted by Federal law. To the extent that plaintiff seeks State remedies for breach of contract, preemption notwithstanding, it has failed to establish a...

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