Mata v. Avianca, Inc.

Filing 10

JOINT LETTER addressed to Judge P. Kevin Castel from the parties dated April 20, 2022 Document filed by Avianca, Inc...(Banino, Bartholomew)

Case 1:22-cv-01461-PKC Document 10 Filed 04/20/22 Page 1 of 2

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April 20, 2022
VIA ECF
Honorable P. Kevin Castel
United States District Judge
United States District Court
Southern District Of New York
500 Pearl Street
New York, New York 10007
Re:

Roberto Mata v. Avianca, Inc.
Civil Action No.: 22-cv-1461 (PKC)

Dear Judge Castel:
The undersigned represent the parties to this litigation. In accordance with the Order dated
February 23, 2022 [Dkt. 6], the parties respectfully submit this letter in advance of the Initial
Pretrial Conference scheduled for April 29, 2022, at 11:30 a.m.
Plaintiff Roberto Mata alleges that he sustained injuries to his left knee when he was struck by a
service cart while traveling as a passenger on Avianca flight AV 670 from San Salvador, El
Salvador, to New York, on August 27, 2019. Plaintiff has asserted state law claims sounding in
negligence. Defendant submits that Plaintiff’s claims are preempted and exclusively governed
by a treaty of the United States known as the Montreal Convention because he alleges he
sustained a physical injury during international air transportation. Defendant’s defenses are as
follows: (1) Plaintiff’s claims against Avianca were discharged by the United States Bankruptcy
Court for the Southern District of New York upon the conclusion of Avianca’s Chapter 11
bankruptcy proceedings, and, therefore, this action violates the injunction against discharged
debts; (2) this action is not timely pursuant to Article 35 of the Montreal Convention; (3)
Plaintiff was not injured as the result of an “accident,” as required by Article 17 of the Montreal
Convention; and (4) even if Plaintiff can prove he was injured as the result of an “accident,” his
damages should be reduced, in whole or in part, in accordance with Articles 20 and 21 of the
Montreal Convention because of the negligence of individuals other than Avianca personnel.
Defendant is contemplating filing a motion to dismiss in light of the first and second defenses
discussed above. In particular, Plaintiff’s claim arose on August 27, 2019, and Avianca filed a
voluntary petition for relief under chapter 11 of the Bankruptcy Code on May 10, 2020. Thus,

Case 1:22-cv-01461-PKC Document 10 Filed 04/20/22 Page 2 of 2

Honorable P. Kevin Castel
April 20, 2022
Page 2
Plaintiff’s recourse against Avianca was limited to a claim filed with the Bankruptcy Court. The
Bankruptcy Court issued an Order confirming Avianca’s Chapter 11 Plan and issued an
injunction against commencement or continuation of an action to collect, recover, or offset a
discharged debt. This action is a violation of that injunction and, therefore, should be dismissed.
Additionally, this action was commenced more than two years after Plaintiff arrived at his
destination. Accordingly, Plaintiff’s claims are time-barred under Article 35 of the Montreal
Convention, and should be dismissed.
In light of its contemplated motions, Defendant submits that this action may be appropriate for
early settlement on a cost of defense basis.
Respectfully submitted,
CONDON & FORSYTH LLP

LEVIDOW LEVIDOW & OBERMAN PC

By: /s/Bartholomew J. Banino
Bartholomew J. Banino
Marissa N. Lefland
7 Times Square, 18th Floor
New York, New York 10036
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[e-mail]
[e-mail]

By: /s/ Peter LoDuca
Peter LoDuca

Attorney for Defendant
Avianca, Inc.
BJB:br

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299 Broadway, Suite 1800
New York, New York 10007
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Fax: [phone]
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Attorney for Plaintiff
Roberto Mata