Dinome v. City of N.Y.

• Decision Date: 31 May 2016
• Docket Number: 14 Civ. 9375 (AJP)
• Parties: PETER DINOME, Plaintiff, v. THE CITY OF NEW YORK, Defendant.
• Court: U.S. District Court — Southern District of New York

PETER DINOME, Plaintiff, v. THE CITY OF NEW YORK, Defendant.

14 Civ. 9375 (AJP)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

May 31, 2016

OPINION & ORDER

ANDREW J. PECK, United States Magistrate Judge:

Plaintiff Peter Dinome brings this action under the Jones Act, 46 U.S.C. § 30104, seeking compensation for a December 19, 2013 injury that he suffered in the course of his employment with the City of New York. (Dkt. No. 2: Compl. at 2.) Presently before the Court is Dinome's motion for partial summary judgment on the issue of his status as a seaman on the City Island Rescue Boat and the "Michael J. Cosgrove" vessel. (Dkt. No. 20: Notice of Mot.) The parties have consented to decision of this case by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 8.) For the reasons set forth below, Dinome's motion is DENIED.

FACTS

The following relevant facts are undisputed:

Dinome began work for the City as a Hart Island deckhand in May 2013. (Dkt. No. 22: Dinome Rule 56.1 Stmt. ¶ 3; Dkt. No. 29: City Rule 56.1 Stmt. ¶ 3.) During Dinome's employment, Hart Island was operated by the City as a burial site for indigent and unknown decedents; City employees used the Cosgrove to reach the island, with each voyage commencing from and returning to City Island in the Bronx. (Dinome & City Rule 56.1 Stmts. ¶¶ 26-27.) The Cosgrove would make between two and ten daily one-way passages between City Island and Hart Island, with no set schedule. (Dinome & City Rule 56.1 Stmts. ¶ 31.) Each trip lasted an average of ten minutes and traveled one half nautical mile. (Dinome & City Rule 56.1 Stmts. ¶ 32.) Dinome usually worked from 6:00 a.m. to 2:00 p.m., Tuesday through Friday. (Dinome & City Rule 56.1 Stmts. ¶ 33.) Dinome also participated in Rescue Boat drills once a week on orders from the Cosgrove captain. (Dinome Rule 56.1 Stmt. ¶ 51 & City Stmt. ¶ 50.)¹

On December 19, 2013, Dinome alleges that he was injured while stowing the Rescue Boat after a drill. (Dinome Rule 56.1 Stmt. ¶ 61 & City Stmt. ¶ 60.) Dinome attempted to lift the Rescue Boat out of the water when the stern line "jumped off the shiv" causing the Rescue Boat to suddenly drop. (Dinome Rule 56.1 Stmt. ¶ 63 & City Stmt. ¶ 62.) At the time of Dinome's injury, the City owned and operated the Cosgrove and the Rescue Boat. (Dinome & City Rule 56.1 Stmts. ¶ 4.)

ANALYSIS

I. LEGAL PRINCIPLES

A. General Summary Judgment Standard

Rule 56 of the Federal Rules of Civil Procedure provides that the "court shall grant summary judgment 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." Fed. R. Civ. P. 56(a); see also, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 2509-10 (1986); Humphreys v. Cablevision Sys. Corp., 553 F. App'x 13, 14 (2d Cir. 2014); Connolly v. Calvanese, 515 F. App'x 62, 62 (2d Cir. 2013); Lang v.Ret. Living Publ'g Co., 949 F.2d 576, 580 (2d Cir. 1991).

The burden of showing that no genuine factual dispute exists rests on the party seeking summary judgment. See, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 1608 (1970); Alzawahra v. Albany Med. Ctr., 546 F. App'x 53, 54 (2d Cir. 2013); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994); Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). The movant may discharge this burden by demonstrating to the Court that there is an absence of evidence to support the non-moving party's case on an issue on which the non-movant has the burden of proof. See, e.g., Celotex Corp. v. Catrett, 477 U.S. at 323, 106 S. Ct. at 2552-53; Dolan v. Cassella, 543 F. App'x 90, 90 (2d Cir. 2013).

To defeat a summary judgment motion, the non-moving party "'must do more than simply show that there is some metaphysical doubt as to the material facts.'" Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769, 1776 (2007) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356 (1986)). Instead, the non-moving party must "cit[e] to particular parts of materials in the record" to show that "a fact . . . is genuinely disputed." Fed. R. Civ. P. 56(c)(1); see, e.g., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587, 106 S. Ct. at 1356; Alzawahra v. Albany Med. Ctr., 2013 WL 6284286 at *1; Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (at summary judgment, "[t]he time has come . . . 'to put up or shut up'"), cert. denied, 540 U.S. 811, 124 S. Ct. 53 (2003).

In evaluating the record to determine whether there is a genuine issue as to any material fact, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S. Ct. at 2513.²The Court draws all inferences in favor of the non-moving party only after determining that such inferences are reasonable, considering all the evidence presented. See, e.g., Apex Oil Co. v. DiMauro, 822 F.2d 246, 252 (2d Cir.), cert. denied, 484 U.S. 977, 108 S. Ct. 489 (1987). "If, as to the issue on which summary judgment is sought, there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper." Chambers v. TRM Copy Ctrs. Corp., 43 F.3d at 37.

In considering a motion for summary judgment, the Court is not to resolve contested issues of fact, but rather is to determine whether there exists any disputed issue of material fact. See, e.g., Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir. 1987); Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932, 107 S. Ct. 1570 (1987). To evaluate a fact's materiality, the substantive law determines which facts are critical and which facts are irrelevant. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S. Ct. at 2510. While "disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment[,] [f]actual disputes that are irrelevant or unnecessary will not be counted." Id. at 248, 106 S. Ct. at 2510 (citations omitted); see also, e.g., Knight v. U.S. Fire Ins. Co., 804 F.2d at 11-12.

II. DINOME'S STATUS AS A "SEAMAN" UNDER THE JONES ACT

The Jones Act provides that a "seaman injured in the course of employment . . . may elect to bring a civil action at law, with the right of trial by jury, against the employer." 46 U.S.C. § 30104. In order for Dinome to recover for his injuries under the Jones Act, he must prove that he was a "seaman" at the time of his injury as contemplated by the Act. Dinome moves for summary judgment on this issue, claiming that he was a seaman aboard the Cosgrove and/or Rescue Boat at the time of his injury. (Dkt. No. 20: Notice of Mot.)

A. "Seaman" Status Under the Jones Act

Whether someone injured aboard a vessel is a "seaman" under the Jones Act presents a mixed question of law and fact. McDermott Int'l, Inc. v. Wilander, 498 U.S. 337, 356, 111 S. Ct. 807, 818 (1991). The Jones Act does not define the term "seaman." Chandris, Inc. v. Latsis, 515 U.S. 347, 355, 115 S. Ct. 2172, 2183 (1995). The analysis focuses on the employee's overall relationship to the vessel, rather than his activities at the time of the injury or the location of the injury alone. Id. at 359-60, 115 S. Ct. at 2185. The Supreme Court has rejected such a "'snapshot'" test because "'a more enduring relationship is contemplated.'" Id. at 363, 115 S. Ct. at 2187. Land-based workers do not become seamen when injured on a vessel, and seamen do not forfeit Jones Act protections when their duties take them ashore. Id. at 361, 115 S. Ct. at 2186.

To qualify for seaman status, "an employee's duties must contribut[e] to the function of the vessel or to the accomplishment of its mission." Id. at 368, 115 S. Ct. at 2190 (quotations omitted). An employee also must "have a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both its duration and its nature." Id. In terms of duration, the Supreme Court has endorsed a "rule of thumb"-a "worker who spends less than about 30 percent of his time in the service of a vessel in navigation should not qualify as a seamanunder the Jones Act." Id. at 371, 115 S. Ct. at 2191; see also, e.g., Daza v. Pile Found. Constr. Co., 983 F. Supp. 2d 399, 410 (S.D.N.Y. 2013) (plaintiff not a seaman where the "percentage of time [he] spent on seaman-related work [was not] even close to the 30% guideline set by the Supreme Court in Chandris"); Quiles v. City of N.Y., 978 F. Supp. 2d 374, 383-84 (S.D.N.Y. 2013) (citing the Chandris rule that "a person is assumed not to be a Jones Act seaman if he spends less than thirty percent of his work time aboard a ship"); Casser v. McAllister Towing & Transp. Co., 10 Civ. 1554, 2010 WL 5065424 at *3 (S.D.N.Y. Dec. 7, 2010) ("In order to satisfy the temporal component, the general rule of thumb is that the plaintiff must spend at least 30% of his time working on a vessel that is in navigation."). This figure, however, is "no more than a guideline" from which a court may depart in the appropriate case. Chandris, Inc. v. Latsis, 515 U.S. at 371, 115 S. Ct. at 2191; see also, e.g., Guarascio v. Drake Assoc. Inc., 06 Civ. 15185, 2008 WL 4222034 at *2-3 (S.D.N.Y. Sept. 15, 2008) (denying defendant summary judgment where plaintiff was "only 7.75 'Jones Act' hours shy of the 30 percent mark," and noting that "30 percent is merely a guideline, not a bright line cutoff").

"The inquiry into seaman status is of necessity fact specific; it will depend on the nature of the vessel and the employee's precise relation to it." McDermott Int'l, Inc. v. Wilander, 498 U.S. at 356, 111 S. Ct. at 818. If reasonable persons...