O'BRIEN v. City of New York

Decision Date24 May 1993
Docket NumberNo. CV-93-0332.,CV-93-0332.
Citation822 F. Supp. 943,1994 AMC 787
PartiesPeter O'BRIEN and Nancy O'Brien, Plaintiffs, v. The CITY OF NEW YORK, Defendant.
CourtU.S. District Court — Eastern District of New York

Augustin J. San Filippo, Paul S. Edelman, Kreindler & Kreindler, New York City, for plaintiffs.

Steven Levi, Asst. Corp. Counsel, New York City, for defendant.


GLASSER, District Judge.

Plaintiff Peter O'Brien was injured while working as a Ferry Terminal Supervisor at the St. George Terminal of the Staten Island Ferry in Staten Island; New York. He commenced this personal injury action under the Longshore and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. § 901 et seq. Defendant City of New York (the "City") moves to dismiss the complaint under Fed. R.Civ.P. 12(b)(6) for failure to state a claim for relief. Because the parties have submitted matters outside the pleadings, the City's motion is converted to a Rule 56 motion for summary judgment pursuant to Fed.R.Civ.P. 12(b), and is granted for the following reasons.


The parties do not dispute any of the facts alleged in the complaint. Defendant City operates the Staten Island Ferry, a fleet of ferry boats, to transport passengers between the boroughs of Staten Island and Manhattan. In Staten Island, the ferries dock at the St. George Terminal. Plaintiff Peter O'Brien ("O'Brien") was employed by the City to perform various duties as a supervisor at that terminal. On February 8, 1984, O'Brien went aboard a ferry that was docked to break up a fight between a male passenger and a female passenger. In order to protect the female passenger, he took her to his office in the terminal building. A few minutes later, the male passenger sought to enter the office, but O'Brien barred his way. The male passenger then struck O'Brien, causing him to trip over a ledge and hit a brick wall near the office entrance. O'Brien injured his neck and ankle in that fall.

On May 6, 1985, O'Brien and his wife, Nancy O'Brien, commenced a personal injury action in state court to recover damages under the Jones Act, 46 U.S.C.App. § 688.1 Exh. A to Def.'s Notice of Mot. Before the case was tried to a jury, the parties consented to have the court conduct an evidentiary hearing to determine whether O'Brien was a seaman for purposes of the Jones Act. At the conclusion of the hearing, the court found that O'Brien was not a Jones Act seaman and dismissed the action. Exhs. B and C to id. The Appellate Division, Second Department, affirmed the lower court decision on April 20, 1992, Exh. D to id., and both the Second Department and the Court of Appeals denied leave to appeal on July 1, 1992, and December 22, 1992, respectively. Exh. E to id.

Approximately one month later, on January 26, 1993, plaintiffs commenced this action in federal court under the LHWCA, 33 U.S.C. § 905(b). The complaint filed in this action is nearly identical to the original state court complaint. Defendant City moves for summary judgment of dismissal. For the following reasons, that motion is granted.


Federal Rule Civil Procedure 56 provides that summary judgment "shall be rendered forthwith if ... there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). To attempt to review the voluminous treatise, law review and judicial literature on summary judgment would be as foolhardy as it would be superfluous. Suffice it to be cognizant of the observation made by the Court in Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986):

Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to secure the just, speedy and inexpensive determination of every action.... Rule 56 must be construed with due regard not only for the rights of persons asserting claims and defenses that are adequately based in fact to have those claims and defenses tried to a jury, but also for the rights of persons opposing such claims and defenses to demonstrate in the manner provided by the Rule, prior to trial, that the claims and defenses have no factual basis.

In Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986), the Court said:

When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.... In the language of the Rule, the nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." ... Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no "genuine issue for trial."

In Steven A. Childress, A New Era for Summary Judgments: Recent Shifts at the Supreme Court, 116 F.R.D. 183 (1987), the author, commenting upon that statement in Matsushita, writes:

This language makes clear that summary judgment acts in a parallel fashion to the trial motion for directed verdict, allowing a grant if the nonmovant plaintiff fails on substantive proof even before trial. This strengthens the perception that summary judgment allows weak factual claims to be weeded out, not just facts that have no legal import: "genuine" allows some quantitative determination of sufficiency of the evidence.

Id. at 186.

And finally, in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), the Court again emphasized that granting a motion for summary judgment requires that there be no genuine issue of material fact. "Only disputes over facts that might affect the outcome of the suit under the governing law will preclude the entry of summary judgment.... Summary judgment will not lie if the dispute about a material fact is `genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248, 106 S.Ct. at 2510. The Court went on to instruct that "if the evidence is merely colorable, ... or is not significantly probative, ... summary judgment may be granted." Id. at 249-50, 106 S.Ct. at 2510-11.

Applying these legal principles, it is clear that summary judgment for defendant City is appropriate because the prior state court determination precludes plaintiffs from bringing this action.

Plaintiffs commenced this action against O'Brien's employer, defendant City under 33 U.S.C. § 905(b). That section provides in relevant part:

In the event of injury to a person covered by the LHWCA caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of 33 U.S.C. section 933....

33 U.S.C. § 905(b).

In 1983 the Supreme Court held that the exclusivity provision of the LHWCA which precludes a covered maritime employee from bringing a personal injury suit against his employer, 33 U.S.C. § 905(a), does not bar an employee from maintaining a negligence action under § 905(b) against his employer if the employer owns the vessel that caused his injury. In that case, the employer is being sued in the capacity of vessel owner, rather than employer. Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 531-32, 103 S.Ct. 2541, 2547-48, 76 L.Ed.2d 768 (1983).2 This action, however, must be dismissed on the grounds of claim preclusion.

It is well settled that a federal court must accord the same preclusive effect to a state court judgment as that judgment would receive under state law in a subsequent proceeding. Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81, 104 S.Ct. 892, 896, 79 L.Ed.2d 56 (1984) (citing 28 U.S.C. § 1738). Under New York law, the doctrine of res judicata or claim preclusion estops a party from relitigating a claim or cause of action decided in an earlier action or which the party could have raised, but was not actually litigated, in the earlier proceeding, Schuykill Fuel Corp. v. B. & C. Nieberg Realty Corp., 250 N.Y. 304, 306-07, 165 N.E. 456, 457 (1929) (Cardozo, J.), because "once a judgment has been rendered by a court of competent jurisdiction, it will be treated thereafter as the full measure of relief between the same parties on the same cause of action." Bottini v. Sadore Management Corp., 764 F.2d 116, 119 (2d Cir.1985) (citing Reilly v. Reid, 45 N.Y.2d 24, 29, 407 N.Y.S.2d 645, 648, 379 N.E.2d 172, 175 (1978)).

In contrast, the doctrine of collateral estoppel or issue preclusion:

bars a party from relitigating in a second proceeding an issue of fact or law that was litigated and actually decided in a prior proceeding, if that party had a full and fair opportunity to litigate the issue in the prior proceeding and the decision of the issue was necessary to support a valid and final judgment on the merits.

Metromedia Co. v. Fugazy, 983 F.2d 350, 365 (2d Cir.1992) (citing cases); S.T. Grand, Inc. v. City of New York, 32 N.Y.2d 300, 304, 344 N.Y.S.2d 938, 941, 298 N.E.2d 105, 107 (1973) (quoting Schwartz v. Public Adm'r of Bronx County, 24 N.Y.2d 65, 71, 298 N.Y.S.2d 955, 960, 246 N.E.2d 725 (1969)).

In this case, plaintiffs first litigated their personal injury action in state court, claiming that O'Brien was entitled to recover damages under the Jones Act, 46 U.S.C.App. § 688, because he was a "seaman." However, notwithstanding that claims under the Jones Act and the LHWCA are mutually exclusive, Southwest Marine, Inc. v. Gizoni, ___ U.S. ___, ___, 112 S.Ct. 486, 492, 116 L.Ed.2d 405 (1991) (citing McDermott Int'l, Inc. v. Wilander, 498 U.S. 337, 452, 111 S.Ct. 807, 817, 112 L.Ed.2d 866 (1991)), plaintiffs could have included a negligence claim under the LHWCA, 33 U.S.C. § 905(b), as an alternative ground for relief in the prior state court action. See, e.g., Ducote v. V. Keeler &...

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