Dubecky v. S2 Yachts, Inc.

• Decision Date: 23 December 1996
• Citation: 234 A.D.2d 501,651 N.Y.S.2d 602
• Parties: Brian DUBECKY, et al., Plaintiffs Respondents-Appellants, v. S2 YACHTS, INC., Defendant Third-Party Plaintiff Appellant-Respondent, Team Marine, Ltd. d/b/a Rowland Boats and Motors, Defendant Appellant-Respondent, Corrs Best Boatworks, Inc., Third-Party Defendant-Respondent, Marvin Greenwald, Third-Party Defendant Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 602

651 N.Y.S.2d 602

234 A.D.2d 501

Brian DUBECKY, et al., Plaintiffs Respondents-Appellants, v. S2 YACHTS, INC., Defendant Third-Party Plaintiff Appellant-Respondent, Team Marine, Ltd. d/b/a Rowland Boats and Motors, Defendant Appellant-Respondent, Corrs Best Boatworks, Inc., Third-Party Defendant-Respondent, Marvin Greenwald, Third-Party Defendant Respondent-Appellant.

Supreme Court, Appellate Division,

Second Department.

Dec. 23, 1996.

Wilson, Elser, Moskowitz, Edelman & Dicker, New York City, (Carl L. Steccato, Francis P. Manchisi, and Alastair Onglingswan of counsel), for appellant-respondent S2 Yachts, Inc.

Standard, Weisberg, Heckerling & Roscow, P.C., New York City, for appellant-respondent Team Marine, Ltd. d/b/a Rowland Boats and Motors.

Daniel F. Hayes, Brooklyn, for plaintiffs respondents-appellants.

Thacher Proffitt & Wood, New York City, (John M. Woods and Gerald J. Ferguson, of counsel), for respondent Corrs Best Boatworks, Inc.

Before MILLER, J.P., and SULLIVAN, ALTMAN and GOLDSTEIN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries and property damage, (1) the defendants S2 Yachts, Inc., and Team Marine, Ltd., appeal, as limited by their briefs, from stated portions of an order of the Supreme Court, Nassau County (McCabe, J.), dated November 16, 1995, which, inter alia, denied those branches of their respective motions which were for summary judgment, inter alia, dismissing the complaint insofar as asserted against each of them, or, in the alternative, to strike the plaintiffs' demands for punitive damages, and granted the cross motion of the defendant third-party defendant Corrs Best Boatworks, Inc., for summary judgment, inter alia, dismissing the amended complaint and third-party complaint insofar as they were asserted against it, and (2) the plaintiffs and the third-party defendant Marvin Greenwald cross-appeal, as limited by their notice of appeal and brief, from so much of the same order as granted the cross motion of Corrs Best Boatworks, Inc., for summary judgment.

ORDERED that the cross appeal by Marvin Greenwald is dismissed as abandoned; and it is further,

ORDERED that the order is modified, on the law, by deleting the provisions thereof which denied those branches of the motions of the defendants-appellants S2 Yachts, Inc., and Team Marine, Ltd., which were to strike the demands for punitive damages, and substituting therefor provisions granting those branches of the motions; as so modified, the order is affirmed insofar as appealed and cross-appealed from; and it is further,

ORDERED that Corrs Best Boatworks, Inc., is awarded one bill of costs payable by the defendants-appellants S2 Yachts, Inc., and Team Marine, Ltd.

The plaintiffs Brian Dubecky, Anthony Nastasi, and Raymond Perez suffered physical injury and loss of property when the fishing boat on which they were aboard capsized and sank during a shark-fishing tournament. The alleged cause of the capsizing and sinking of the vessel was the defective design of a cut-out transom and motor well at the stern of the boat which allowed water to accumulate in the boat. The boat was never recovered. The plaintiffs' claim was supported by the affidavit of an expert who examined the particular model of the boat involved in the accident, and, after trial runs, determined that the boat contained a design defect which permitted water to enter the cockpit of the boat from the stern at a rate faster than the boat could expel the same water....