MacKay v. Paliotta

• Decision Date: 14 July 2021
• Docket Number: 2020–04070,Index No. 34812/13
• Citation: 196 A.D.3d 552,151 N.Y.S.3d 671
• Parties: Ian MACKAY, appellant-respondent, v. Chad PALIOTTA, et al., respondents-appellants.
• Court: New York Supreme Court — Appellate Division

196 A.D.3d 552
151 N.Y.S.3d 671

Ian MACKAY, appellant-respondent,
v.
Chad PALIOTTA, et al., respondents-appellants.

2020–04070
Index No. 34812/13

Supreme Court, Appellate Division, Second Department, New York.

Argued—June 17, 2021
July 14, 2021

151 N.Y.S.3d 672

Feerick Nugent MacCartney PLLC, South Nyack, N.Y. (Donald J. Feerick, Jr., Patrick A. Knowles, and Patrick J. McGorman of counsel), for appellant-respondent.

Keane & Bernheimer, PLLC, Valhalla, N.Y. (Jason M. Bernheimer and Christopher Alan Abel, pro hac vice, of counsel), for respondent-appellant Chad Paliotta.

Baxter Smith & Shapiro, P.C., Hicksville, N.Y. (Arthur J. Smith and Sim R. Shapiro of counsel), for respondents-appellants Audrey Schneider and Joellen Putter for Maffei Family Trust, doing business as Tappan Zee Marina.

WILLIAM F. MASTRO, J.P., COLLEEN D. DUFFY, VALERIE BRATHWAITE NELSON, LARA J. GENOVESI, JJ.

DECISION & ORDER

196 A.D.3d 553

In an action to recover damages for injury to property, the plaintiff appeals, and the defendant Chad Paliotta and the defendants Audrey Schneider and Joellen Putter for Maffei Family Trust, doing business as Tappan Zee Marina, separately cross-appeal, from an order of the Supreme Court, Rockland County (Robert M. Berliner, J.), dated May 6, 2020. The order, insofar as appealed from, denied those branches of the plaintiff's motion which were for summary judgment on the issue of liability against the defendants Audrey Schneider and Joellen Putter for Maffei Family Trust, doing business as Tappan Zee Marina, and for an immediate trial on the issue of damages. The order, insofar as cross-appealed from by the defendant Chad Paliotta, granted that branch of the plaintiff's motion which was

151 N.Y.S.3d 673

for summary judgment on the issue of liability against him and, in effect, sua sponte, directed dismissal of his affirmative defenses to the complaint except those defenses alleging contributory negligence against the defendants Audrey Schneider and Joellen Putter for Maffei Family Trust, doing business as Tappan Zee Marina. The order, insofar as cross-appealed from by the defendants Audrey Schneider and Joellen Putter for Maffei Family Trust, doing business as Tappan Zee Marina, denied that branch of the plaintiff's motion which was for summary judgment on the issue of liability against them and, in effect, sua sponte, directed dismissal of their affirmative defenses to the complaint except those defenses alleging contributory negligence against the defendant Chad Paliotta.

ORDERED that the cross appeal by the defendants Audrey Schneider and Joellen Putter for Maffei Family Trust, doing business as Tappan Zee Marina, from so much of the order as denied that branch of the plaintiff's motion which was for summary judgment on the issue of liability against them is dismissed, as those defendants are not aggrieved by that portion of the order (see CPLR 5511 ; Mixon v. TBV, Inc., 76 A.D.3d 144, 904 N.Y.S.2d 132 ); and it is further,

ORDERED that on the Court's own motion, the notice of cross

196 A.D.3d 554

appeal of the defendant Chad Paliotta from so much of the order as, in effect, sua sponte, directed dismissal of his affirmative defenses to the complaint, except those defenses alleging contributory negligence as between the defendants, is deemed to be an application for leave to appeal from that portion of the order, and leave to appeal is granted (see CPLR 5701[c] ); and it is further,

ORDERED that on the Court's own motion, the notice of cross appeal of the defendants Audrey Schneider and Joellen Putter for Maffei Family Trust, doing business as Tappan Zee Marina, from so much of the order as, in effect, sua sponte, directed dismissal of their affirmative defenses to the complaint, except those defenses alleging contributory negligence as between the defendants, is deemed to be an application for leave to appeal from that portion of the order, and leave to appeal is granted (see CPLR 5701[c] ); and it is further,

ORDERED that the order is modified, on the law, by deleting the provision thereof, in effect, sua sponte, directing dismissal of the defendants’ affirmative defenses to the complaint, except those defenses alleging contributory negligence as between the defendants; as so modified, the order is affirmed insofar as appealed from, affirmed insofar as cross-appealed from by the defendant Chad Paliotta, and insofar as reviewed on the cross appeal by the defendants Audrey Schneider and Joellen Putter for Maffei Family Trust, doing business as Tappan Zee Marina; and it is further,

ORDERED that one bill of costs is awarded to the defendants Audrey Schneider and Joellen Putter for Maffei Family Trust, doing business as Tappan Zee Marina, payable by the plaintiff.

The plaintiff owned and operated a marina located on the Hudson River in Piermont, known as the Last Chance Boat Club (hereinafter the plaintiff's marina). The plaintiff's marina was situated nearby and to the south of another marina located on the Hudson River, known as the Tappan Zee Marina (hereinafter TZM's marina), which was owned by the defendants Audrey Schneider and Joellen Putter for Maffei Family Trust, doing business as Tappan Zee Marina (hereinafter together TZM). The defendant Chad Paliotta owned a 41–foot–long, 12–foot–wide sailboat known as the Invictus. In or about 2012, Paliotta moored the sailboat in a

151 N.Y.S.3d 674

mooring field at TZM's marina. At some point either immediately before or during Hurricane Sandy, Paliotta's sailboat broke free from its moorings, floated in a southerly direction on the Hudson River toward the plaintiff's marina, and allided with the plaintiff's marina structures.

196 A.D.3d 555

In August 2013, the plaintiff commenced the instant action against Paliotta and TZM to recover damages for the alleged injuries that the plaintiff's marina sustained as a result of the allision. The plaintiff alleged, inter alia, that Paliotta was negligent in failing to either adequately secure the sailboat at TZM's marina through proper mooring lines/anchors or move the sailboat to a safe location. The plaintiff alleged, inter alia, that TZM was negligent in failing to require Paliotta to remove the sailboat from TZM's marina. Paliotta answered the complaint and asserted various affirmative defenses and a cross claim against TZM for indemnification or contribution. TZM answered the complaint and asserted various affirmative defenses and a counterclaim against the plaintiff for sanctions.

In November 2013, Paliotta commenced a proceeding in the United States District Court for the Southern District of New York pursuant to the Limitation of Liability Act ( 46 USC § 30501 et seq. ), seeking exoneration from or limitation of liability for the alleged damage caused by the sailboat to the plaintiff's marina (hereinafter the limitation proceeding). In the limitation petition, Paliotta admitted that the sailboat was torn from its mooring at TZM's marina and taken downstream, where it "impacted" the plaintiff's marina, and that "significant damage" was caused to both the sailboat and the plaintiff's marina. However, Paliotta alleged that he should be exonerated from liability, or that his liability should be limited to the post-loss value of the sailboat, because he took reasonable measures to secure the sailboat prior to Hurricane Sandy. On December 5, 2013, the District Court enjoined the filing or prosecution of any action or proceeding related to the subject incident, including the instant action commenced by the plaintiff. In January 2014, the plaintiff filed an answer to the limitation petition and a claim...