Podgurski v. Town of North Hempstead, CV 10-2316 (ADS)
| Decision Date | 14 November 2011 |
| Docket Number | CV 10-2316 (ADS) |
| Parties | THOMAS PODGURSKI, Plaintiff, v. TOWN OF NORTH HEMPSTEAD and MEYRAN MARINE SERVICES, INC., Defendants. |
| Court | U.S. District Court — Eastern District of New York |
MEMORANDUM OF
DECISION AND ORDER
APPEARANCES :
BENNETT GIULIANO MCDONNELL & PERRONE
Attorneys for the Plaintiff
By: Nicholas P. Giuliano, Esq.
Joseph J. Perrone, Esq., of Counsel
TISDALE LAW OFFICES
Attorneys for the Defendants
By: Thomas L. Tisdale, Esq.
Timothy J. Nast, Esq., of Counsel
As the Court commented in other maritime cases, never before have water-based recreational activities been so popular. Each spring, summer and fall, oceans, rivers, lakes and bays of the United States team with recreational watercraft. These craft have to come to rest in various manners in docks and at anchor, and affixing to moorings in the water. This case involves a mooring and the boat operator's attempt to disengage his sailboat from that mooring. While doing so, his right middle finger was severely injured when it was caught in a carabiner ona shackle on the mooring ball. The critical issue in this case is clear. Was the injury caused in any manner by the negligence of the mooring service company or the Town of North Hempstead in not properly preparing the mooring for the acceptance of the vessel, or was it caused by the negligence of the plaintiff as a result of lack of care on his part, or was the injury caused by the negligence of both the defendants and the plaintiff.
This case involves an injury to the right middle finger of the plaintiff Thomas Podgurski (the "plaintiff" or "Podgurski") in an incident that occurred on May 23, 2009 between 1:00 pm and 2:00 pm. The plaintiff was going to take himself and his sailing partner out for a sail and was attempting to disengage his boat from the mooring. The plaintiff's boat is a 33 foot Dakota based catamaran sailing vessel. This was not his customary mooring. It was a transient mooring assigned to him by Matthew Meyran ("Matt Meyran"), an employee and the owner of the defendant Meyran Marine Services, Inc. ("Meyran Marine").
The plaintiff Thomas Podgurski resides in Port Washington and is a co-owner of an insurance agency. One of his hobbies is sailing and fishing. He owned this 33 foot twin engine catamaran sailboat called the Girlcat. In the sailing season starting in mid-May, the plaintiff keeps the Girlcat at the Town of North Hempstead ("Town") mooring areas in Manhasset Bay on the north shore of Long Island. The plaintiff applied for a town mooring permit for the 2009 boating season and paid the fee for the permit. He was advised by the Town that if he needed to have his mooring installed, he was to call Matt Meyran, the owner of the defendant Meyran Marine. Meyran Marine is a designated provider of services for mooring for the Town of NorthHempstead. Matt Meyran is also the owner of the Port Washington Water Taxi, which has a launch service that transports clients to and from the town dock and their boats.
The plaintiff owned moorings from 2003 through 2009. All of the moorings were installed by Meyran Marine. For the 2009 season, the plaintiff launched the Girlcat boat on May 14, 2009. The day before he spoke to Matt Meyran when he observed that his mooring was not in the water. Matt Meyran directed him to mooring number 7. The full name of the mooring is "Thompson Commercial Mooring number 7." The plaintiff was told that he could use mooring number 7 until his own mooring was available. After the plaintiff launched the Girlcat on May 14th, from Tom's Point Marina, he sailed for a few hours and then tied up his vessel at mooring number 7. He spoke to Matt Meyran who picked him up at the mooring. The plaintiff told Matt Meyran that it was very difficult to pick up the chain. It was very heavy and he bent his boat back lifting the chain. He asked Matt Meyran to put a "pickup" on the mooring so it would be easier to use. Matt Meyran said "don't worry, I'm going to get your mooring done right away." The plaintiff was asked what a mooring typically consists of. He responded:
When he returned to mooring number 7 on May 14, 2009, the plaintiff used his boat hook to engage the shackle and lift the heavy chain. The boat hook broke but he clipped on his carabiner. A carabiner is a metal instrument which is a polished spring-loaded clip used to attach lines. There was no pennant line and no pickup at mooring number 7. The top of the mooring ball at number 7 had a shackle but no swivel or pennant line. The shackle was directly in contact with the mooring ball. In his water taxi ride with Matt Meyran on May 14th the plaintiff described his difficulty with the chain and he told him about putting a vertical piece of conduit on top of the mooring ball. The plaintiff then sent a photograph of this type of conduit to Matt Meyran. (See plaintiff's Exhibit 21).
The plaintiff next used his boat on Sunday, May 17th. His regular mooring was still not in place and he again went by water taxi to mooring number 7. As before, the mooring had no pennant or pickup. It was a "light air day". The carabiner was still annexed. From his boat, he picked up the line hand over hand, and reached and grabbed the shackle and disengaged the carabiner. He held the shackle by putting his middle finger of his right hand through the shackle to support the weight of the shackle and disengaged the clip. As stated above, the mooring had a shackle but no swivel. He then went for a sail. Podgurski returned from the sailing trip on May 17th in the late afternoon and tied up at the same mooring. He took the water taxi to return to the shore and again asked the driver "to at least put a pennant on the mooring I was using until such time as he would put down my regular mooring." (Tr. at 68, 69).
The plaintiff next went to his boat on May 23, 2009, on Memorial Day weekend. He expected his own mooring to be available. At the very least, if he had to continue to use mooring number 7, he expected that there would be a pennant or a pickup on the mooring. When theplaintiff arrived at commercial mooring number 7 on May 23rd where his boat was moored, it had not changed in any way. It had the same equipment; meaning, no pennant or pickup on it. The sailing conditions that day were a little breezier than on the prior occasions. The wind was blowing at about 15 knots. The plaintiff described what happened when he attempted to unhitch his boat from mooring number 7 on May 23, 2009:
The injured finger was the middle finger of his right hand. The plaintiff stated that for the period he owned the Girlcat from 2006 to May 23, 2009, he had no experience using a mooring without a pennant other than commercial number 7. His regular mooring, at DW61 had a pennant line attached to the mooring. (See plaintiff's Exhibits 7 and 10). Notably, his regular mooring ball, DW61 has a shackle, a swivel and a pennant line attached to it.
After the injury, the plaintiff's finger was dangling by a thread of skin and flesh. He put the finger back in place and covered and wrapped it with eight inch line and applied a tourniquet to stop the bleeding. His companion called for help. A harbor control boat took him to the dockwhere two ambulances were waiting. He was taken to North Shore Hospital where he was under the care of Dr. Jacob Cohen-Kashi, a plastic surgeon who performed an operation on his finger. In the operation, a cure nail was inserted to put the two separate pieces of his finger together. The plaintiff passed out from the pain. He was discharged from the hospital later that same day.
After his surgery, the plaintiff was treated by Dr. Cohen-Kashi. He was also seen for an opinion by Dr. Tuckman, a hand specialist. The pin in his finger was removed by Dr. Cohen-Kashi in July 2009. He was also treated by Dr. Shatzer, a pain specialist, Dr. Gertstein in Manhattan and Dr. David Benatar. Asked to describe the present condition of the middle finger of his right hand, Podgurski responded:
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