Opinion
2016–01081 Index Nos. 21940/10, 13980/11, 11617/12
02-13-2019
Deborah SUGAMELE, etc., Appellant, v. TOWN OF HEMPSTEAD, Respondent. (Action No. 1) James Feynman, etc., et al., Appellants, v. Town of Hempstead, Respondent. (Action No. 2) Barbara Ericson, etc., Appellant, v. Town of Hempstead, Respondent. (Action No. 3)
Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf, New York, N.Y. (D. Allen Zachary of counsel), for appellant in Action No. 1. Glynn Mercep and Purcell, LLP, Stony Brook, N.Y. (Scott B. MacLagan of counsel), for appellants in Action No. 2. Sullivan Papain Block McGrath & Cannavo P.C., New York, N.Y. (Brian J. Shoot and Gabriel A. Arce–Yee of counsel), for appellants in Action No. 3. Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., Garden City, N.Y. (Randy S. Nissan and Peter Sullivan of counsel), for respondent.
Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf, New York, N.Y. (D. Allen Zachary of counsel), for appellant in Action No. 1.
Glynn Mercep and Purcell, LLP, Stony Brook, N.Y. (Scott B. MacLagan of counsel), for appellants in Action No. 2.
Sullivan Papain Block McGrath & Cannavo P.C., New York, N.Y. (Brian J. Shoot and Gabriel A. Arce–Yee of counsel), for appellants in Action No. 3.
Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., Garden City, N.Y. (Randy S. Nissan and Peter Sullivan of counsel), for respondent.
MARK C. DILLON, J.P., ROBERT J. MILLER, HECTOR D. LASALLE, ANGELA G. IANNACCI, JJ.
DECISION & ORDERORDERED that the judgment is reversed, on the law, with one bill of costs to the appellants appearing separately and filing separate briefs, the defendant's motion for summary judgment dismissing the complaints is denied, the order entered November 18, 2015, is modified accordingly, and the complaints are reinstated.
In October 2009, a speedboat occupied by seven people allided with Goose Island, a marshy body of land located off the coast of Long Island, resulting in the deaths of four of those passengers and injuries to the others. In three separate actions, the plaintiffs alleged that the defendant, Town of Hempstead, was negligent in its installation and placement of buoys marking a channel around Goose Island. The three actions were joined for trial. Following discovery, the Town moved for summary judgment dismissing the complaints. In an order entered November 18, 2015, the Supreme Court granted the Town's motion for summary judgment dismissing the complaints. A judgment entered December 17, 2015, upon that order, dismissed the complaints, and the plaintiffs appeal.
Maritime law, which is applicable in this case, recognizes a general theory of liability for negligence (see East River S.S. Corp. v. Transamerica Delaval Inc., 476 U.S. 858, 859, 106 S.Ct. 2295, 90 L.Ed.2d 865 ). "[N]egligent conduct on the navigable waters that causes loss to another constitutes a maritime tort" ( United States v. M/V Big Sam, 681 F.2d 432, 443 [5th Cir.] ). Once the Town set a channel through the use of navigational aids, it had a duty to maintain those navigational aids in a reasonable and prudent manner (see Tringali Bros. v. United States, 630 F.2d 1089, 1090 [5th Cir.] ; Somerset Seafood Co. v. United States, 193 F.2d 631, 635 [4th Cir.] ; see also Turturro v. City of New York, 28 N.Y.3d 469, 479, 45 N.Y.S.3d 874, 68 N.E.3d 693 ; Nowlin v. City of New York, 81 N.Y.2d 81, 88, 595 N.Y.S.2d 927, 612 N.E.2d 285 ; Lopes v. Rostad, 45 N.Y.2d 617, 623, 412 N.Y.S.2d 127, 384 N.E.2d 673 ).
Upon applying maritime law, we conclude that the Town failed to establish its prima facie entitlement to judgment as a matter of law. Although the Town submitted evidence suggesting that the accident may have been at least partly caused by negligence on the part of the boat's operator, the Town failed to meet its prima facie burden of demonstrating the lack of any triable issues of fact regarding the Town's comparative fault based on its placement and maintenance of the buoys in the Goose Island Channel (see Whitney S.S. Co. v. United States, 747 F.2d 69, 72 [2d Cir.] ).
Since the Town failed to satisfy its prima facie burden, we need not consider the sufficiency of the opposition papers (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572 ).
DILLON, J.P., MILLER, LASALLE and IANNACCI, JJ., concur.