
    Hermann Wolff & Co., Ltd., Appellant, v Braniff Airways Incorporated, Doing Business as Braniff International, et al., Respondents, et al., Defendants.
   Order, Supreme Court, New York County, entered December 9, 1975, unanimously affirmed, with $60 costs and disbursements to respondents. This is a breach of contract action brought for nondelivery of bales of fur, part of a shipment delivered to defendants, air carriers, pursuant to an airway bill, for carriage from Iquitos, Peru to London, England. Special Term had granted plaintiff summary judgment on the issue of liability and directed an assessment of damages. Plaintiff seeks to recover the sum of $47,500 representing the alleged actual value of the nondelivered bales, whereas defendants, citing the fact that the shipment was made under the articles of the Warsaw Convention, claim limitation of liability under section (2) of article 22 to $6,565.68. Before the directed assessment, plaintiff moved for summary judgment as to the measure of damages to be applied at the assessment. Special Term denied the motion, holding that on the assessment already directed, damages in excess of the treaty limitation cannot be fixed on motion, but must await a plenary hearing. Affirmance is warranted for the reason that the appropriate measure of damages requires prior resolution of the issue of willful misconduct on the defendants’ part. Under article 25 of the convention such misconduct serves to remove the limitation of damages envisioned under section (2) of article 22. Scrutiny of the record discloses an elucidation of events occurring subsequent to the loss which elucidation does not sufficiently establish willful misconduct as a matter of law. The issue of willful misconduct, therefore, is best resolved at the hearing on the assessment of damages. Concur—Kupferman, J. P., Lupiano, Birns, Silverman and Nunez, JJ.  