Sologub v. NYC, Docket No. 99-7306

Citation202 F.3d 175
Decision Date01 August 1999
Docket NumberDocket No. 99-7306
Parties(2nd Cir. 2000) SERGEY SOLOGUB, Plaintiff-Appellant, v. THE CITY OF NEW YORK, Defendant-Appellee
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

PAUL C. MATTHEWS New York, NY, for Plaintiff-Appellant,

EDWARD F.X. HART, Office of Corporation Counsel of the City of New York, New York, NY (Michael D. Hess, Corporation Counsel of the City of New York, Leonard Koerner, of Counsel, on the brief), for Defendant-Appellee.

Before: KEARSE, MINER and LEVAL, Circuit Judges.

MINER, Circuit Judge:

Plaintiff-Appellant Sergey Sologub appeals from a summary judgment entered in favor of defendant-appellee The City of New York ("the City") in the United States District Court for the Southern District of New York (Martin, J.). Sologub was employed by the City in the civil service title of deckhand. He was assigned to Staten Island Ferry Terminal duties when he was seriously injured in the course of his employment while assisting in the docking of a ferry. Sologub brought the action giving rise to this appeal to recover damages for the injuries he sustained as a result of the accident. In his complaint Sologub claimed the benefits of the Jones Act, 46 U.S.C. app. 688(a), which allows seamen to recover damages against their employers for personal injuries suffered in the course of their employment. The City moved for summary judgment, and the district court granted the motion after concluding that Sologub was not a seaman for the purposes of Jones Act coverage at the time he was injured. See Sologub v. City of New York, No. 96-5234, 1999 WL 76865, *1-2 (S.D.N.Y. Feb. 16, 1999).

BACKGROUND

Born in Russia on July 19, 1969, Sologub has been engaged in maritime studies or the performance of maritime-related employment since the age of fourteen. At that age, he enrolled in the Naval Junior Marine School in Sevastopol, U.S.S.R. He then completed four years of study at the Odessa Marine & Engineering College and thereafter worked in an unlicensed capacity for the Black Sea Shipping Company on various ferry transports and cruise ships. Following that service, he enrolled at a Marine & Engineering Academy and completed an Engineer-Navigator course. In November 1991, Sologub was issued licenses by the Republic of Liberia, qualifying him to sail as a Third Officer and Third Assistant Engineer on ships of Liberian registry.

In 1992, Sologub started to sail on American ships and joined the Seafarer's International Union in 1993. As a union member, he attended a course given by the Harry Lundeberg School of Seamanship. At the conclusion of that course, he took and passed an examination given by the United States Coast Guard and was certified as an able seaman. Sologub then worked as a deckhand for McAllister Brothers Corp. and Morania Oil Tanker Corp. He completed a course in navigational safety training in 1994. Having applied for the position in 1993, Sologub was hired in the civil service title of deckhand in June of 1995 by the Department of Transportation of the City of New York, Division of Ferries.

Through the Division of Ferries, the City operates a fleet of seven ferryboats for the transportation of passengers and vehicles between the terminals at Whitehall Street in lower Manhattan and St. George in Staten Island. Five of the seven boats are operated during any given week. Eighty-five deckhands usually are working during any 24-hour period. Of these, fifty-eight are assigned to perform duties while riding on the boats and twenty-seven are assigned to work at the terminals, handling lines and gates and mechanical devices that facilitate the boarding and discharge of passengers and vehicles. The City requires that all deckhands be familiar with the duties to be performed aboard the vessels, as well as the duties to be performed in the terminals. To qualify for the civil service position of deckhand, an applicant must have two years of satisfactory service as a deckhand within the last ten years, with preference given to those with experience on ferry boats.

Approximately 196 deckhands are employed by the Division of Ferries, 70% of whom generally work on the boats and 30% at the terminals providing shoreside support. All the deckhand jobs are subject to bidding and are assigned by seniority. Bidding preferences may designate a specific shift, a specific boat, terminal duty or boat duty. According to Joseph Lynch, the shop steward of the union that represents the deckhands, those who seek to work on a boat "will usually succeed in obtaining a berth aboard a ferry by not being selective, but instead showing a willingness to work any shift on any boat." One of those who was so willing was Sergey Sologub.

Sologub indicated on his bid slip that he was willing to take any slot on any boat. Ambitious for advancement, he told Captain Ryan, the Head of the Division of Ferries, that it was his "dream" to advance to mate, assistant captain, or captain on one of the ferry boats. During any 24-hour period, fourteen mates, nine assistant captains and nine captains customarily are on duty. Despite his desire to serve exclusively on the boats and his forward movement on the seniority list, Sologub worked intermittently on various boats between the commencement of his employment on June 30, 1995 and September 22, 1995. During that period, he apparently worked alternately at the terminals and on the boats, with no fixed schedule.

Commencing on September 26, 1995 and continuing to the date of his accident on the night of April 15, 1996, Sologub was regularly assigned to terminal duties. These duties consisted of work either as a bridgeman or an apronman. From a dockside work station, a bridgeman raises and lowers the pedestrian walkway or "bridge" that connects the dock to the second deck of the ferry to allow passengers to board and exit. He also is assigned to open and close the terminal doors to allow passengers to pass from the terminal to the ferry. From a position on shore, an apronman raises and lowers the movable ramps called "aprons" that allow passengers to board and exit the main deck of the ferryboat. He also is assigned to open the terminal gates. Bridgemen and apronmen perform assigned cleaning duties at the terminal as well.

Sologub worked at the Whitehall Terminal from September 26, 1995 to February 22, 1996 as a bridgeman or apronman. Only one eight-hour tour of duty during that entire period was served aboard a ferry. Commencing on February 22, 1996, he was assigned to what he referred to as a "steady position," replacing another worker who had been reassigned. In this new position, Sologub worked as a nightshift bridgeman/apronman, alternating between the terminals at St. George and Whitehall. His regular work week was four days on and three days off, and he worked two consecutive nights in each terminal. Late on the night of April 15 or in the early morning hours of April 16, 1996, at the St. George Terminal, Sologub sustained the injuries giving rise to his Jones Act claim. The accident occurred when Sologub stood on top of pilings to receive mooring lines from a deckhand aboard a ferry that was laying up for the night. The tide was low, and Sologub was far above the deck of the boat. Apparently, there was no illumination of the area where Sologub was standing and the weather was overcast and drizzling. As the boat came in, it struck the side of the slip and jarred the pilings upon which Sologub was standing. He lost his balance and fell between the pilings, where he was found unconscious sometime later.

In granting summary judgment on the determination that Sologub was not a seaman within the intendment of the Jones Act at the time he was injured, the district court acknowledged that the question of seaman status is often not an appropriate one to take away from the jury. However, the court concluded that the uncontested facts demonstrated that Sologub did not hold the status of seaman when he sustained his injuries. The district court reasoned that, since Sologub was assigned as a terminal-based deckhand at the St. George Terminal and therefore did not work at sea, he could not be classified as a seaman. The court observed that "his connection to the ferries was transitory in that he only worked with the ferries at the beginning and end of their voyages." Sologub, 1999 WL 76865 at *1. Contending on appeal that the issue of his seaman status should have been submitted to a jury, Sologub argues that the district court erred in failing to consider the existence of relevant evidence indicating a connection to the fleet of ferryboats that was substantial in both duration and nature. Sologub also faults the district court's application of Supreme Court precedent in granting summary judgment. Finding no basis for the positions advanced by Sologub, we affirm.

DISCUSSION

Essential to success on a motion for summary judgment is a showing by the moving party that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Fed. R. Civ. P. 56(c). The district court "must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor." Consarc Corp. v. Marine Midland Bank, N.A., 996 F.2d 568, 572 (2d Cir. 1993). We review de novo a determination by the district court to grant summary judgment. See Stagl v. Delta Airlines, Inc., 52 F.3d 463, 466-67 (2d...

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