Loughlin v Town of Oyster Bay

[*1] Loughlin v Town of Oyster Bay 2018 NY Slip Op 51866(U) Decided on December 13, 2018 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 13, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : BRUCE E. TOLBERT, J.P., JAMES V. BRANDS, TERRY JANE RUDERMAN, JJ
2017-1399 N C

Andrew Loughlin, Respondent,

against

Town of Oyster Bay, Appellant.

Office of The Town Attorney, Town of Oyster Bay (Regan Lally, Paul S. Ehrlich and Joseph Nocella of counsel), for appellant. Andrew Loughlin, respondent pro se (no brief filed).

Appeal from a judgment of the District Court of Nassau County, First District (William Hohauser, J.), entered July 19, 2016. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,000.

ORDERED that the judgment is affirmed, without costs.

In this small claims action, plaintiff seeks to recover the principal sum of $5,000 for property damage he sustained and related costs. At a nonjury trial, plaintiff testified that, for 30 years, he had rented the same boat slip from defendant, the Town of Oyster Bay, on a seasonal basis, and had kept his boat moored there. On September 3, 2014, his boat became partially submerged. Plaintiff paid a boat-towing company $1,520.75 to raise the boat and remove it from the water. Plaintiff then towed the boat to his home, where he flushed salt water from the boat's engine and replaced the spark plugs, before returning the boat to the water. Within a week of the event, plaintiff returned to the slip at low tide; plaintiff then discovered, and photographed, a corroded indentation that had formed on the riser to which his boat had been moored. Plaintiff introduced the photograph into evidence. He opined that his boat had become partially submerged because the ring to which the boat's line had been attached had become caught in the corroded indentation on the riser, which was a component of the slip plaintiff rented from defendant, and that, as a result, when the tide rose, the boat's line tightened and the boat had been unable to rise.

Following the trial, the District Court awarded judgment to plaintiff in the principal sum of $1,000. On appeal, defendant contends that plaintiff's alleged proof of the cause of his boat's partial submergence was speculative.

In a small claims action, our review is limited to a determination of whether "substantial justice has . . . been done between the parties according to the rules and principles of substantive law" (UDCA 1807; see UDCA 1804; Ross v Friedman, 269 AD2d 584 [2004]; Williams v Roper, 269 AD2d 125, 126 [2000]). "[A] small claims judgment may not be overturned simply because [*2]the determination appealed from involves an arguable point on which an appellate court may differ; the deviation from substantive law must be readily apparent and the court's determination clearly erroneous" (Forte v Bielecki, 118 AD2d 620, 621 [1986]; see also Tranquility Salon & Day Spa, Inc. v Caira, 141 AD3d 711, 712 [2016]; Hohenberger v Smithtown Cent. Sch. Dist., 58 Misc 3d 6, 8 [App Term, 2d Dept, 9th & 10th Jud Dists 2017]). Here, in finding for plaintiff, the District Court implicitly found that plaintiff's damages had been caused by defendant's negligence. Based on the evidence presented by plaintiff, we find that this implicit determination was not clearly erroneous.

Furthermore, the parties' rental agreement was insufficient to insulate defendant from liability. It specifically stated, at paragraph 9, that the slip plaintiff used "at all times remain[ed] under the full control of the Town of Oyster Bay," thus indicating that defendant retained responsibility for its condition. Moreover, the clause of the agreement upon which defendant relies, under which plaintiff assumed "all risk of loss due to damages, theft, vandalism, or accident to his/her property while berthed in the marina" and released defendant from "any and all claims whatsoever for loss, damage, fire, theft, or accident to his/her property," was insufficient to exculpate defendant from liability because it did not unequivocally relieve defendant of liability for a claim based on defendant's own negligence (see Trummer v Niewisch, 17 AD3d 349 [2005]; Bennett v Genesee Mar., 237 AD2d 908 [1997]; see also Gross v Sweet, 49 NY2d 102, 106 [1979]). We therefore conclude that the judgment rendered substantial justice between the parties according to the rules and principles of substantive law (see UDCA 1804, 1807).

Accordingly, the judgment is affirmed.

TOLBERT, J.P., BRANDS and RUDERMAN, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 13, 2018