Stein v. The County of Nassau

FILED

IN CLERK'S OFFICE

U.S. DISTRICT COURT E.D.NLY.

x ~~ SEP *

UNITED STATES DISTRICT COURT 30 2018

EASTERN DISTRICT OF NEW YORK

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RICHARD M. STEIN,

Plaintiff,

OPINION & ORDER

-against- 17-CV-6055(SJF)(ARL)

COUNTY OF NASSAU,

Defendant. .

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FEUERSTEN, District Judge:

I. Introduction

On October 17, 2017, plaintiff Richard M. Stein (“‘plaintiff’ or “Stein”) commenced this

action against defendant County of Nassau (“defendant” or “the County”), pursuant to, inter alia,

the Jones Act, 46 U.S.C. § 30104; general maritime law; and N.Y. Gen. Mun. Law § 205-e,

seeking to recover for personal injuries he allegedly sustained as a result of the unseaworthiness

of defendant’s vessel and/or defendant’s negligence. Pending before the Court is plaintiff's

motion for partial summary judgment on the issue of liability on his Jones Act and

unseaworthiness claims pursuant to Rule 56 of the Federal Rules of Civil Procedure; and

defendant’s application to dismiss plaintiff's claim pursuant to N.Y. Gen. Mun. Law § 205-e.!

For the reasons set forth below, plaintiff's motion is denied and defendant’s application is

granted.

' Defendant did not cross-move for summary judgment dismissing any of plaintiff’s claims, but requests dismissal of

plaintiff's state law claim in its memorandum of law in opposition to plaintiff's motion for partial summary

judgment. Plaintiff did not oppose or otherwise respond to defendant’s application in his reply papers.

II. Background

A. Factual Allegations2

On October 15, 2016, i.e., the date of the accident, plaintiff was employed by the County

as a member of the Nassau County Police Department (“NCPD”). (Plaintiff’s Statement of

Material Facts pursuant to Local Civil Rule 56.1(a) [“Plf. 56.1”], ¶ 1; Defendant’s

Counterstatement pursuant to Local Civil Rule 56.1(b) [“Def. 56.1”], ¶ 1). Plaintiff’s command

was the Marine Bureau. (Def. 56.1, ¶ 1; see Plf. 56.1, ¶ 1).

On the date of the accident, plaintiff was assigned to a tour from 7:00 a.m. until 7:00 p.m.

at the Marine Bureau Base at Bay Park, located at the foot of First Avenue, in East Rockaway,

New York, (Plf. 56.1, ¶¶ 2, 7; Def. 56.1, ¶¶ 2, 7), to work as a crew member on Vessel Marine

21, one of the NCPD’s two (2) SAFE Boats, which was located at its berth in the boat basin at

the NCPD Marine Bureau’s Base at Bay Park. (Plf. 56.1, ¶¶ 3, 7; Def. 56.1, ¶¶ 3, 7). The County

2 The factual allegations are taken from the pleadings and the parties’ statements pursuant to Local Civil Rule 56.1

of the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York (“Local

Civil Rule 56.1”), to the extent that they are properly supported pursuant to Rule 56(c) of the Federal Rules of Civil

Procedure. See Local Civil Rule 56.1(d) (“Each statement by the movant or opponent pursuant to Rule 56.1(a) and

(b), including each statement controverting any statement of material fact, must be followed by citation to evidence

which would be admissible, set forth as required by Fed. R. Civ. P. 56(c).”); New World Sols., Inc. v. NameMedia

Inc., 150 F. Supp. 3d 287, 305 (S.D.N.Y. 2015) (“[I]f a party fails to properly support a statement by an adequate

citation to the record, the Court may properly disregard that assertion.”); F.D.I.C. v. Hodge, 50 F. Supp. 3d 327, 343,

n. 2 (E.D.N.Y. 2014) (“Statements without citation to evidence may be properly ignored by the court.”); Kaur v.

New York City Health & Hosps. Corp., 688 F. Supp. 2d 317, 322 (S.D.N.Y. 2010) (“Where there are no citations or

where the cited materials do not support the factual assertions in the Statements, the Court is free to disregard the

assertion.” (quotations, alterations and citation omitted)). Moreover, only those facts that are material to the

disposition of the motions, i.e., that “might affect the outcome of the suit under the governing law,” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986), are set forth herein. See Zann

Kwan v. Andalex Grp. LLC, 737 F.3d 834, 843 (2d Cir. 2013) (“The substantive law governing the case will identify

those facts that are material, and ‘[o]nly disputes over facts that might affect the outcome of the suit under the

governing law will properly preclude the entry of summary judgment.’” (brackets in original) (quoting Anderson,

477 U.S. at 248, 106 S. Ct. 2505)). The following facts are undisputed unless otherwise indicated.

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was the owner of the SAFE Boat to which plaintiff was assigned on that date, i.e., Vessel Marine

21. (Plf. 56.1, ¶ 4; Def. 56.1, ¶ 4).

One of the means of access to the floating dock used by members of the NCPD’s Marine

Bureau to get to the vessels berthed at the Marine Bureau base was a wooden ladder affixed to a

bulkhead. (Plf. 56.1, ¶ 6; Def. 56.1, ¶ 6). There is also a ramp or gangway on the east side of the

dock which may be used by the Marine Bureau members to access the vessels. (Certification of

Timothy F. Schweitzer, Esq. [“Schweitzer Cert.”], Ex. 5 at p. 10).

On the date of the accident, at approximately 1:45 p.m., plaintiff was descending the

wooden ladder to access the floating dock to get to the vessel to which he was assigned, when a

rung near the bottom of the ladder broke, causing him to fall into the water between the dock and

the bulkhead, striking the dock as he fell. (Schweitzer Cert., Ex. 1, ¶ 7; Ex. 5 at pp. 7-8; and Ex.

9). A “Supervisor’s Report of Member’s Action” (the “Supervisor’s Report”) indicates, inter

alia, that plaintiff was acting within the scope of his official duties at the time of the accident;

that he did not violate the Department Rules; and that he did not need to be trained or retrained.

(Id., Ex. 10). In addition, remarks by the commanding officer indicate, inter alia,

“Environmental factor (ladder) was confirmed; remedial actions have been taken to prevent

recurrence.” (Id.)

B. Procedural History

On October 17, 2017, plaintiff commenced this action against the County, pursuant to,

inter alia, the Jones Act, 46 U.S.C. § 30104; general maritime law; and N.Y. Gen. Mun. Law §

205-e, seeking to recover for personal injuries he allegedly sustained as a result of defendant’s

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negligence and the unseaworthiness of defendant’s vessel. Issue was joined by the service of an

answer on behalf of defendants on November 10, 2017.

Following the close of discovery, plaintiff moved for partial summary judgment on the

issue of liability on his Jones Act and unseaworthiness claims pursuant to Rule 56 of the Federal

Rules of Civil Procedure. In its opposition to plaintiff’s motion, defendant requests that

plaintiff’s state law claim under N.Y. Gen. Mun Law § 205-e be dismissed with prejudice.

III. Discussion

A. Standard of Review

“Summary judgment is proper ‘if the movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.’” ING Bank N.V. v.

M/V TEMARA, IMO No. 9333929, 892 F.3d 511, 518 (2d Cir. 2018) (quoting Fed. R. Civ. P.

56(a)); accord Jaffer v. Hirji, 887 F.3d 111, 114 (2d Cir. 2018). In ruling on a summary

judgment motion, the district court must first “determine whether there is a genuine dispute as to

a material fact, raising an issue for trial.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184,

202 (2d Cir. 2007) (internal quotations and citations omitted); see also Ricci v. DeStefano, 557

U.S. 557, 129 S. Ct. 2658, 2677, 174 L. Ed. 2d 490 (2009) (“On a motion for summary

judgment, facts must be viewed in the light most favorable to the nonmoving party only if there

is a ‘genuine’ dispute as to those facts.” (emphasis added) (internal quotations and citation

omitted). “A fact is material if it ‘might affect the outcome of the suit under the governing

law[.]’” Baldwin v. EMI Feist Catalog, Inc., 805 F.3d 18, 25 (2d Cir. 2015) (quoting Anderson,

477 U.S. at 248, 106 S. Ct. 2505).

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In reviewing the record to determine whether there is a genuine issue for trial, the court

must “construe the evidence in the light most favorable to the non-moving party,” Centro de la

Comunidad Hispana de Locust Valley v. Town of Oyster Bay, 868 F.3d 104, 109 (2d Cir. 2017)

(quotations, alterations and citation omitted), and “resolve all ambiguities, and credit all factual

inferences that could rationally be drawn, in favor of the party opposing summary judgment.”

Davis-Garett v. Urban Outfitters, Inc., 921 F.3d 30, 45 (2d Cir. 2019) (quotations and citation

omitted); see also Hancock v. County of Rensselaer, 882 F.3d 58, 64 (2d Cir. 2018) (“In

determining whether there is a genuine dispute as to a material fact, we must resolve all

ambiguities and draw all inferences against the moving party.”) “A genuine issue of material fact

exists if ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving

party.’” Pollard v. New York Methodist Hosp., 861 F.3d 374, 378 (2d Cir. 2017) (quoting

Anderson, 477 U.S. at 248, 106 S. Ct. 2505); accord Nick’s Garage, Inc. v. Progressive Casualty

Ins. Co., 875 F.3d 107, 113-14 (2d Cir. 2017). “Where the record taken as a whole could not lead

a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Ricci,

557 U.S. at 586, 129 S. Ct. at 2677 (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio

Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986)); accord Baez v. JetBlue

Airways Corp., 793 F.3d 269, 274 (2d Cir. 2015).

“The moving party bears the initial burden of showing that there is no genuine dispute as

to a material fact.” CILP Assocs., L.P. v. PriceWaterhouse Coopers LLP, 735 F.3d 114, 123 (2d

Cir. 2013) (quotations, brackets and citation omitted); accord Jaffer, 887 F.3d at 114. “[W]hen

the moving party has carried its burden[,] . . . its opponent must do more than simply show that

there is some metaphysical doubt as to the material facts . . . [,]” Scott v. Harris, 550 U.S. 372,

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380, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007) (quoting Matsushita Elec., 475 U.S. at 586-87,

106 S. Ct. 1348), and must offer “some hard evidence showing that its version of the events is

not wholly fanciful[.]” Miner v. Clinton County, N.Y., 541 F.3d 464, 471 (2d Cir. 2008)

(quotations and citation omitted). The nonmoving party can only defeat summary judgment “by

adduc[ing] evidence on which the jury could reasonably find for that party.” Lyons v. Lancer Ins.

Co., 681 F.3d 50, 56 (2d Cir. 2012) (quotations, brackets and citation omitted). “‘The mere

existence of a scintilla of evidence in support of the [non-movant’s] position will be insufficient’

to defeat a summary judgment motion[,]” Fabrikant v. French, 691 F.3d 193, 205 (2d Cir. 2012)

(quoting Anderson, 477 U.S. at 252, 106 S. Ct. 2505); and “[a] court cannot credit a plaintiff=s

merely speculative or conclusory assertions.” DiStiso v. Cook, 691 F.3d 226, 230 (2d Cir. 2012);

see also Federal Trade Comm’n v. Moses, 913 F.3d 297, 305 (2d Cir. 2019) (“[A] party may not

rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for

summary judgment.”); Flores v. United States, 885 F.3d 119, 122 (2d Cir. 2018) (“While we are

required to resolve all ambiguities and draw all permissible factual inferences in favor of the

non-moving party, . . . conclusory statements, conjecture, or speculation by the party resisting the

motion will not defeat summary judgment[.]” (quotations, alterations and citations omitted)).

Since “there is no issue for trial unless there is sufficient evidence favoring the nonmoving party

for a jury to return a verdict for that party[,] . . . [i]f the evidence is merely colorable, . . . or is not

significantly probative, . . . summary judgment may be granted.” Anderson, 477 U.S. at 249-50,

106 S. Ct. 2505 (quotations and citations omitted).

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B. Unseaworthiness Claim

“[L]liability based upon unseaworthiness is wholly distinct from liability based upon

negligence . . . [because] unseaworthiness is a condition, and how that condition came into

being—whether by negligence or otherwise—is quite irrelevant to the owner’s liability for

personal injuries resulting from it.” Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 498, 91

S. Ct. 514, 27 L. Ed. 2d 562 (1971).

“Under the principles of seaworthiness, an owner has an absolute duty to furnish a ship,

crew, and appurtenances reasonably fit for their intended service.” Oxley v. City of New York,

923 F.2d 22, 24 (2d Cir. 1991); see also Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438, 441,

121 S. Ct. 993, 148 L. Ed. 2d 931 (2001) (“Unseaworthiness is a claim under general maritime

law based on the vessel owner’s duty to ensure that the vessel is reasonably fit to be at sea.”)

Barlow v. Liberty Maritime Corp., 746 F.3d 518, 528 (2d Cir. 2014) (“In admiralty, ship owners

are strictly liable for injury resulting from the unseaworthiness of their vessel and the vessel’s

appurtenances.”) “An owner’s failure to provide a ship, crew, and appurtenances reasonably fit

for their intended service results is a species of liability without fault,’ . . . and such liability does

not depend either on negligence [] or on notice[.]” Oxley, 923 F.2d at 25 (quotations and

citations omitted); see also Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 549, 80 S. Ct. 926, 4

L. Ed. 2d 941 (1960) (“[T]he owner’s duty to furnish a seaworthy ship is absolute and

completely independent of his duty under the Jones Act to exercise reasonable care.”)

Accordingly, “the shipowner’s actual or constructive knowledge of the unseaworthy condition is

not essential to his liability.” Mitchell, 362 U.S. at 549, 80 S. Ct. 926; see also Martinez v. City

of New York, 684 F. App’x 90, 92 (2d Cir. Mar. 29, 2017) (summary order) “[W]here a condition

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renders a ship unseaworthy, liability attaches without regard to negligence or notice.”); Poignant

v. United States, 225 F.2d 595, 597 (2d Cir. 1955) (“Since the inquiry in unseaworthiness cases

is not directed to the issue of the owner’s fault, it follows that prior notice, actual or constructive,

of the unseaworthy condition is not essential to a cause of action based on that doctrine.”)

Similarly, “lack of control does not prevent the accrual of absolute liability for unseaworthiness.

. . .” Poignant, 225 F.2d at 597.

However, while the duty to furnish a seaworthy ship “is absolute, . . . it is a duty only to

furnish a vessel and appurtenances reasonably fit for their intended use.” Mitchell, 362 U.S. at

550, 80 S. Ct. 926; see also Barlow, 746 F.3d at 529 (“[A]lthough the doctrine of

unseaworthiness entails liability without fault, there must still be a defect in the vessel.”

(quotations and citation omitted)). The owner is not “obligated to furnish an accident-free ship.”

Mitchell, 362 U.S. at 550, 80 S. Ct. 926; see also Martinez, 684 F. App’x at 92 (“Seaworthiness

does not demand an accident-free ship, only one reasonably fit to be at sea.”) “The standard is

not perfection, but reasonable fitness; not a ship that will weather every conceivable storm or

withstand every imaginable peril of the sea, but a vessel reasonably suitable for her intended

service.” Mitchell, 362 U.S. at 550, 80 S. Ct. 926; accord Barlow, 746 F.3d at 528. “Thus, the

concept of the unseaworthiness of a ship is a relative one, dependent for definition in each

instance upon the circumstances in which her fitness is drawn into question.” Mosley v. Cia.

Mar. Adra, S.A., 314 F.2d 223, 227 (2d Cir. 1963). “A finding of seaworthiness is usually a

finding of fact.” Mahnich v. Southern S.S. Co., 321 U.S. 96, 98, 64 S. Ct. 455, 88 L. Ed. 2d 561

(1944); see also Quiles v. City of N.Y., 978 F. Supp. 2d 374, 386 (S.D.N.Y. 2013) (“Whether a

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vessel is unseaworthy, and whether an unseaworthy condition proximately caused a plaintiff’s

injury, generally are questions of fact for the jury.”)

In order to establish a “claim of unseaworthiness under general maritime law, a plaintiff

must show that a vessel is ‘insufficiently or defectively equipped[,]’” Martinez, 684 F. App’x at

92 (quoting Oxley, 923 F.2d at 25), “and that his injuries resulted from the unseaworthy

condition of the vessel[.]” Oxley, 923 F.2d at 26. Although “the fact that equipment fails is some

evidence that it was unfit for the duties it was undertaking[,] . . . it is not conclusive.” Barlow,

746 F.3d at 529. Nonetheless, “[n]othing more need be shown except that the device in question

failed under conditions when it should have functioned properly.” Barlow, 746 F.3d at 529

(quoting Oliveras v. Am. Exp. Isbrandtsen Lines, Inc., 431 F.2d 814, 816 (2d Cir. 1970)).

In addition to “the defective condition of a physical part of the ship itself[,] . . . [a]

vessel’s condition of unseaworthiness might arise from any number of circumstances[:] Her gear

might be defective, her appurtenances in disrepair, her crew unfit. The number of men assigned

to perform a shipboard task might be insufficient. The method of loading her cargo, or the

manner of its stowage, might be improper. For any of these reasons, or others, a vessel might not

be reasonably fit for her intended service.” Usner, 400 U.S. at 499, 91 S. Ct. 514. “Moreover, a

vessel is considered unseaworthy if it lacks a safe place of ingress and egress.” Oxley, 923 F.2d

at 26; see, e.g. Diebold v. Moore McCormack Bulk Transp. Lines, Inc., 805 F.2d 55, 58 (2d Cir.

1986); Buch v. United States, 220 F.2d 165, 166 (2d Cir. 1955).

Plaintiff has not demonstrated his entitlement to judgment as a matter of law on his

unseaworthiness claim under general maritime law. “Piers and docks [are] deemed extensions of

land,” Victory Carriers, Inc. v. Law, 404 U.S. 202, 206-07, 92 S. Ct. 418, 30 L. Ed. 2d 383

9

(1971); accord MLC Fishing, Inc. v. Velez, 667 F.3d 140, 142 (2d Cir. 2011), “while the means

of access between a dock and a vessel is considered an ‘appurtenance’ of the vessel.” Florida

Fuels, Inc. v. Citgo Petroleum Corp., 6 F.3d 330, 332 (5th Cir. 1993). “The gangplank has served

as a rough dividing line . . . .” Victory Carriers, 404 U.S. at 207, 92 S. Ct. 418; see also Romero

Reyes v. Marine Enters., Inc., 494 F.2d 866, 870 (1st Cir. 1974) (“The authorities are virtually

unanimous that maritime liability encompasses the gangway.” (citing cases)).

Indeed, an “appurtenance” is defined as “[s]omething that belongs or is attached to

something else; esp. something that is part of something else that is more important[.]”

Appurtenance, Black’s Law Dictionary (10th ed. 2014). The Supreme Court has indicated that

appurtenances are “indispensable instruments, without which the ship could not perform its

functions.” U.S. v. Dewey, 188 U.S. 254, 269, 23 S. Ct. 415, 47 L. Ed. 2d 463 (1903).

All of the cases cited by plaintiff in support of its claim that a vessel may be considered

unseaworthy for failure to provide a safe means of ingress or egress involved gangways, or other

means of access, or the lack thereof, to the vessel itself. See, e.g. Oxley, 923 F.2d at 24 (broken

cleats on the dock and the lack of a gangplank between the vessel and the dock rendered the

vessel unseaworthy); Romero Reyes, 494 F.2d at 868 (fall from the gangway); Toddy v. Arkansas

Valley Dredging Co., 470 F. Supp. 692, 694 (E.D. Ark. 1979) (employer provided no means of

ingress between the bank and the vessel); Herbert v. Otto Candies, Inc., 402 F. Supp. 503, 505-

06 (E.D. La. 1975) (failure to provide a safe means of ingress and egress from the decedent’s

crewboat to the vessel to which it was moored); Wesley v. City of N.Y., 76 A.D.3d 925, 908

N.Y.S.2d 43 (N.Y. App. Div. 2010) (deckhand was injured while lowering a ramp from the dock

to the back of the vessel). In other words, those cases all involved injuries caused by an

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appurtenance to the vessel, or the lack of an indispensable appurtenance by which to embark or

disembark the vessel.

Plaintiff has not demonstrated that he was injured by an appurtenance of defendant’s

vessel. In an analogous case, In re Complaint of MLC Fishing, Inc., No. 08-cv-3056, 2010 WL

582570 (E.D.N.Y. Feb. 6, 2010), aff’d, 667 F.3d 140 (2d Cir. 2011), the plaintiff was injured on

a ramp leading to a floating dock, which served as the only means of ingress and egress to the

vessel. The court rejected the plaintiff’s argument that the ramp and/or floating dock constituted

an appurtenance of the vessel or was equivalent to the vessel’s gangway. In affirming the district

court’s decision, the Second Circuit, relying, in part, upon Victory Carriers, supra, and the

Supreme Court’s decision in Cope v. Vallette Dry-Dock Co., 119 U.S. 625, 627, 7 S. Ct. 336, 30

L. Ed. 501 (1887) (holding that floating docks are considered to be extensions of land), held that

the ramp to the floating dock was properly “considered an extension of the land;” not an

appurtenance of the vessel. MLC Fishing, 667 F.3d at 142 (quotations omitted). In this case, not

only was the wooden ladder from which plaintiff fell separated from the vessel by a floating

dock, it indisputably was not the only means of ingress and egress to the vessel.3 See, e.g.

3 Nor has plaintiff established as a matter of law that the ladder was under the exclusive use or control of defendant.

Plaintiff’s conclusory assertions that the County had exclusive use and control of the ladder are insufficient to

demonstrate his entitlement to judgment as a matter of law on that issue. See, e.g. McNeill v. Jordan, No. 14-cv-

2872, 2017 WL 9482092, at * 7 (E.D.N.Y. Feb. 17, 2017), report and recommendation adopted, 2017 WL 2955763

(E.D.N.Y. July 11, 2017), appeal dismissed, 2017 WL 6333976 (2d Cir. Nov. 30, 2017); Schnur v. CTC Commc’ns

Corp. Grp. Disability Plan, 621 F. Supp. 2d 96, 102-03 (S.D.N.Y. 2008). Moreover, although the Court may have

discretion to consider evidence submitted for the first time in the movant’s reply papers, see Compania Del Bajo

Caroni (Caromin), C.A. v. Bolivarian Rep. of Venezuela, 341 F. App’x 722, 724 (2d Cir. Aug. 14, 2009), the Court

declines to consider the evidence submitted by plaintiff for the first time its reply papers because, inter alia, (i) he

proffers no explanation for his failure to present such evidence in his opening papers, nor does he claim that the

evidence was not available to him at the time he served his initial motion papers; (ii) his belated submission denied

defendant an opportunity to respond to such evidence; and, (iii) in any event, the evidence is insufficient to establish

as a matter of law that defendant had exclusive use or control of the subject ladder. See, e.g. Thompson v. Spota, No.

14-cv-2473, 2019 WL 2602062, at * 3 (E.D.N.Y. June 25, 2019); Process Am., Inc. v. Cynergy Holdings, LLC, No.

12-cv-772, 2014 WL 3844626, at * 15 (E.D.N.Y. Apr. 30, 2014), aff’d, 839 F.3d 125 (2d Cir. 2016). Indeed,

plaintiff was clearly aware of the need to present evidence of defendant’s exclusive use or control of the ladder in

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Howard v. Offshore Liftboats, LLC, No. CV-13-4811, 2016 WL 3536799, at *3 (E.D. La., June

28, 2016) (“[I]f a vessel has a safe, appropriate means of ingress and egress, then ingress and

egress is a negligence concept. . . . Only if a vessel fails to provide a safe, appropriate means of

ingress and egress is ingress and egress an unseaworthiness concept.”)

Similarly, in Hayes v. County of Nassau, 557 F. App’x 49 (2d Cir. Feb. 7, 2014)

(summary order), the Second Circuit affirmed the district court’s conclusion that the plaintiff,

who, like Stein, was a County policy officer assigned to the Marine Bureau, could not satisfy the

location requirement for federal admiralty jurisdiction over his unseaworthiness claim “because

his injury occurred at the base of the gangway leading to the floating dock, which . . . is not on or

over navigable waters.” Id., 557 F. App’x at 52.

Since, inter alia, plaintiff has not established that his injuries were caused by the

condition of the vessel, her appurtenances, her cargo or her crew; or that his injury occurred on

or over navigable waters, he has not established his entitlement to judgment as a matter law on

his unseaworthiness claim against defendant. See generally Usner, 400 U.S. at 500, 91 S. Ct.

514; e.g. Hayes, 557 F. App’x at 52. Accordingly, the branch of plaintiff’s motion seeking

summary judgment on his unseaworthiness claim against defendant is denied.

Furthermore, as it appears that federal admiralty jurisdiction does not extend to plaintiff’s

unseaworthiness claim, plaintiff is hereby,

ORDERED to show cause, by written submission filed on or before November 4, 2019,

why summary judgment dismissing his unseaworthiness claim in its entirety with prejudice

should not be granted in favor of defendant pursuant to Fed. R. Civ. P. 56(f).

support of his motion for summary judgment, (see Plf. 56.1, ¶¶ 12-15), yet the sole evidence he submitted in his

original papers, i.e., a website printout, does not support that claim.

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C. Jones Act Claims

“A Jones Act claim is an in personam action for a seaman who suffers injury in the

course of employment due to negligence of his employer, the vessel owner, or crew members.”

Lewis, 531 U.S. at 441, 121 S. Ct. 993; see also Matter of Buchanan Marine, L.P., 874 F.3d 356,

363 (2d Cir. 2017), cert. denied sub nom Volk v. Franz, 138 S. Ct. 1442, 200 L. Ed. 2d 718

(2018) (“The Jones Act confers a cause of action in negligence to any ‘seaman injured in the

course of employment.’” (quoting 46 U.S.C. § 30104)). “Unlike the law of unseaworthiness,

which focuses on the condition of the vessel, . . . the Jones Act places a separate and distinct duty

on the owner to provide a reasonably safe workplace[.]” Oxley, 923 F.2d at 25.

In cases under the Jones Act, “[a] plaintiff is entitled to go to the jury if ‘the proofs justify

with reason the conclusion that employer negligence played any part, even the slightest, in

producing the injury ... for which damages are sought.’” Diebold, 805 F.2d at 57 (emphasis in

original) (quoting Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 506, 77 S. Ct. 443, 1 L. Ed.

2d 493 (1957)4); accord Oxley, 923 F.2d at 25. Thus, “in Jones Act cases, the right of the jury to

pass upon the question of fault and causation must be most liberally viewed.” Oxley, 923 F.3d at

25 (quotations and citation omitted).

“To prove negligence under the Jones Act, a plaintiff must establish that there was (1) a

dangerous condition on the ship [or in the workplace], (2) of which defendant had notice, that (3)

proximately caused the plaintiff’s injuries.” Martinez, 684 F. App’x at 92; see also Diebold, 805

F.2d at 58 (“Plaintiff was required to prove by a preponderance of the evidence: (1) that a

4 Although Rogers involved claims under the Federal Employers’ Liability Act (“FELA”), 45 U.S.C. § 51, et seq., in

Ferguson v. Moore-McCormack Lines, Inc., 352 U.S. 521, 77 S. Ct. 457, 1 L. Ed. 2d 511 (1957), the Supreme Court

extended its holding to cases under the Jones Act “[s]ince the standard of liability under the Jones Act is that

established by Congress under the [FELA].” Id. at 523, 77 S. Ct. 457.

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dangerous condition actually existed on the ship; (2) that the defendant shipowner had notice of

the dangerous condition and should have reasonably anticipated the plaintiff might be injured by

it; and (3) that if the shipowner was negligent, such negligence proximately caused the plaintiff's

injuries.” (quotations and citation omitted)). In addition, “a seaman may recover for injuries

caused by his employer’s requirement that he do his job in a dangerous manner when other safer

methods are readily available, . . . or that he use equipment that is not reasonably fit for the safe

performance of the task at hand.” Diebold, 805 F.2d at 58. Moreover, shipowners have a duty “to

provide a reasonably safe means of ingress and egress,” and, thus, may be “negligent in failing to

provide a safe means of docking and boarding.” Oxley, 923 F.3d at 25; see also Hayes, 557 F.

App’x at 52 (agreeing with the plaintiff’s contention “that the district court erred in dismissing

his Jones Act claim because a seaman’s employer has a non-delegable duty to ensure a safe

means of ingress/egress to the ship, at least where the seaman acts within the scope of his

employment.”)

Furthermore, in both FELA and Jones Act cases, “an employer has a ‘nondelegable duty

to provide its employees with a safe place to work even when they are required to go onto the

premises of a third party over which the [employer] has no control[.]’” Hayes, 557 F. App’x at

52 (brackets in original) (quoting Shenker v. Balt. & Ohio R.R. Co., 374 U.S. 1, 7, 83 S. Ct.

1667, 10 L. Ed. 2d 709 (1963)). “The employer breaches this duty when it ‘knows or should

know of a potential hazard in the workplace, yet fails to exercise reasonable care to inform and

protect its employees.’” Id. (quoting Gallose v. Long Island R.R. Co., 878 F.2d 80, 84-85 (2d

Cir.1989)); accord Williams v. Long Island R.R. Co., 196 F.3d 402, 406 (2d Cir. 1999); see, e.g.

Poignant, 225 F.2d at 596 (affirming the trial court’s finding that the plaintiff’s failure to prove

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that the defendant had actual or constructive notice of the hazardous condition “was fatal to her

cause of action for negligence” under the Jones Act).

There are genuine disputes of material fact as to, inter alia, whether the County was

negligent in failing to provide plaintiff with a safe place to work, or with a reasonably safe means

of ingress and egress to the vessel to which he was assigned on the date of the accident; and,

particularly, whether it knew, or should have known, of the defective condition of the ladder and

unreasonably failed to protect its employees therefrom. Accordingly, the branch of plaintiff’s

motion seeking summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure

on its Jones Act claim against defendant is denied.

1. Res Ipsa Loquitur

The doctrine of res ipsa loquitur, which means, “The thing speaks for itself,” “enables a

plaintiff to prevail in a certain type of circumstance in proving negligence even though the

plaintiff cannot show exactly who or what caused her injury.” Manhattan by Sail, Inc. v. Tagle,

873 F.3d 177, 180 (2d Cir. 2017). “Under that doctrine, a fact-finder may infer negligence

merely from the happening of the event that caused the harm if: (1) the event is of a type that

ordinarily would not occur in the absence of negligence; (2) it is caused by an agency or

instrumentality under the exclusive control of the party charged with negligence; and (3) it is not

due to any voluntary action or contribution on the part of injured party.” Id.; see also Potthast v.

Metro-North R.R. Co., 400 F.3d 143, 149 (2005); Sojak v. Hudson Waterways Corp., 590 F.2d

53, 55 (2d Cir. 1978) (holding that the doctrine of res ipsa loquitur “is applicable only where the

instrumentality that causes the harm is under the exclusive control of the defendant and the

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accident is of a type that in the ordinary course of events would not occur in the absence of

negligence.”)

“Res ipsa loquitur is most commonly applied in circumstances where, unlike this case, it

is not known exactly who or what caused the accident.” Manhattan by Sail, 873 F.3d at 183.

Moreover, Plaintiff incongruously argues that the accident, i.e., the breaking of the rung of the

ladder, is both “extraordinary in nature,” such that the doctrine of res ipsa loquitur should apply,

(Plf. Mem. at 15; Plf. Reply at 4-5); and that “[i]t is generally accepted that wood will rot when

exposed to salt water,” and, thus, that the purported rotting of the ladder’s rung was not

extraordinary, such that defendant should be charged with constructive notice of the defective

condition of the ladder. (Plf. Reply at 2).

In any event, plaintiff has not sufficiently established, inter alia, that the ladder from

which he fell was in the exclusive control of defendant. As set forth above, plaintiff’s conclusory

assertions that the ladder was under the exclusive control of defendant, without more, are

insufficient to satisfy his burden of proof on this issue; and his contention that “[t]here is no

evidence otherwise,” (Plf. Mem. at 14), impermissibly shifts the burden of proof to defendant.

Accordingly, the branches of plaintiff’s motion seeking summary judgment on his Jones Act

claims pursuant to Rule 56 of the Federal Rules of Civil Procedure are denied in their entirety.

D. N.Y. Gen. Mun. Law § 205-e Claim

In his reply, plaintiff does not address defendant’s contention that his claim under N.Y.

Gen. Mun. Law § 205-e, (Compl., ¶¶ 18-19), should be dismissed.

Section 205-e of the New York General Municipal Law provides, in pertinent part:

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“In addition to any other right of action or recovery under any other provision of

law, in the event any accident, causing injury, . . . occurs directly or indirectly as a

result of any neglect, omission, willful or culpable negligence of any person or

persons in failing to comply with the requirements of any of the statutes,

ordinances, rules, orders and requirements of the federal, state, county, village,

town or city governments or of any and all their departments, divisions and bureaus,

the person or persons guilty of said neglect, omission, willful or culpable

negligence at the time of such injury . . . shall be liable to pay any officer, member,

agent or employee of any police department injured, . . . while in the discharge or

performance at any time or place of any duty imposed by the police commissioner,

police chief or other superior officer of the police department, . . . a sum of money,

in case of injury to person, not less than one thousand dollars, . . . such liability to

be determined and such sums recovered in an action to be instituted by any person

injured . . . .”

“In order to assert a claim under General Municipal Law § 205–e, a plaintiff must [1]

identify the statute or ordinance with which the defendant failed to comply, [2] describe the

manner in which the [police officer] was injured, and [3] set forth those facts from which it may

be inferred that the defendant's negligence directly or indirectly caused the harm.” Gammons v

City of New York, 24 N.Y.3d 562, 570, 2 N.Y.S.3d 45, 25 N.E.3d 958 (N.Y. 2014). “[A]s a

prerequisite to recovery, a police officer must demonstrate injury resulting from negligent

noncompliance with a requirement found in a well-developed body of law and regulation that

imposes clear duties.” Williams v City of New York, 2 N.Y.3d 352, 364, 779 N.Y.S.2d 449, 811

N.E.2d 1103 (N.Y. 2004). Moreover, “[l]iability cannot be imposed under section 205–e unless a

plaintiff has established that a statute was, in fact, violated.” Id.

Since plaintiff has not alleged, much less established, that defendant violated any statute

or ordinance, and, indeed, he does not even address so much of defendant’s opposition as

requests dismissal of his claim under N.Y. Gen. Mun. Law § 205-e, defendant’s application to

dismiss that claim is granted and plaintiff’s N.Y. Gen. Mun. Law § 205-e claim is dismissed in

its entirety with prejudice.

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IV. Conclusion

For the reasons set forth above, plaintiff’s motion for summary judgment on the issue of

liability on its Jones Act and unseaworthiness claims pursuant to Rule 56 of the Federal Rules of

Civil Procedure is denied in its entirety; defendant’s application to dismiss plaintiff’s claim

under N.Y. Gen. Mun. Law § 205-e is granted and that claim is dismissed in its entirety; and

plaintiff is hereby,

ORDERED to show cause, by written submission filed on or before November 4, 2019,

why summary judgment dismissing his unseaworthiness claim in its entirety with prejudice

should not be granted for defendant pursuant to Fed. R. Civ. P. 56(f).

The status conference scheduled to be held before the undersigned on January 6, 2020 is

advanced to November 5, 2019 at 11:15 a.m.

SO ORDERED.

____/s/ Sandra J. Feuerstein__

Sandra J. Feuerstein

United States District Judge

Dated: September 30, 2019

Central Islip, New York

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