Balzano v Kutchytska
Annotate this CaseDecided on October 10, 2013
Civil Court of the City of New York, Richmond County
Philip Balzano, Claimant,
against
Ulyana Kutchytska, Defendant.
Ulyana Kutchytska, Claimant,
against
Bella Home Improvements, Inc., Defendant.
SCR 1345/12-41
Claimant was self-represented
Jeffrey Tomie of
Tomie & Associates
136 Bay Street,
Staten Island, NY 10301 Represented Defendant Bella Home Improvements
O'Connor, O'Connor Hintz & Deveney
1 Huntington Quadrangle, Suite 3C01
Melville, NY 11747 Represented Defendant Ulyana Kutchytska
Philip S. Straniere, J.
Claimant, Philip Balzano, commenced this small claims action against the defendant, Ulyana Kutchytska, alleging that owing to the negligence of the defendant, [*2]claimant's boat was damaged. Defendant Kutchytska, filed a counterclaim against Balzano for damages to her property caused by claimant's vessel. Kutchytska filed a third party action against Bella Home Improvement, Inc. (Bella) asserting that if defendant was found liable to claimant, Bella should have to indemnify defendant. Bella filed a counterclaim against Kutchytska alleging breach of an unspecified agreement. A trial was held on September 19, 2013. Claimant represented himself. Kutchytska and Bella were each represented by their own counsel. The name of Bella was amended to reflect that it was a corporation.
This litigation arises from the aftermath of Hurricane/Superstorm Sandy on October 29, 2012.
Claimant testified that he owned 1979, 26-foot, Silverton motor boat, which he moored at Great Kills Harbor, Staten Island, New York. He stated that it was moored at moorage site E6 in Great Kills Harbor prior to the storm hitting. Claimant said that his boat and many others were involuntarily transported as a result of the storm with his vessel eventually making landfall on the front steps of 25 Groton Street, Staten Island, New York, the premises owned by defendant Kutchytska. Claimant asserted that the reason his boat and others were dislodged from their moorings was that boats at the Nichols Marina in Gateway National Park, Staten Island, became loose and somehow came in contact with the vessels in the marina where he was moored. How he came to that conclusion, rather than the more obvious one of determining that the storm caused the boat to break its mooring and carrying it to rest on land, was never explained.
Claimant further testified that on November 7, 2012 a friend told him that it might be claimant's boat the friend observed in front of 25 Groton Street. Claimant stated that he went to that address, and determined it was his boat. He said he wrote his name and telephone number on the vessel in case anyone needed to contact him. He said that no one was home at 25 Groton Street so he left a note on defendant's door with his name and telephone number and indicated he would return in a few days.
Claimant then testified that when he returned on November 9, 2012 he found his boat had been removed from its resting place on defendant's front steps. He asserts that whoever moved the boat did not do it properly, dragged it along the street and in doing so damaged the hull, the rudder and the transom. This damage he contends was over and above some minimal damage caused by the storm.
On that date, claimant spoke to defendant and her husband, neither of them had any knowledge as to who moved the boat. Claimant also spoke to third-party defendant Bella who was making repairs to the house next to defendant's. No one from Bella had any information as to who had relocated claimant's boat. Although they speculated that NYC Sanitation Department had moved it.
On November 15, 2012, claimant said, he came with a trailer and removed the boat from the street. It is currently on land. Claimant submitted two estimates for repairs to the [*3]boat, one for $8,700.00 and the second for $6,921.21. He also testified that he believed the boat was worth $5,500.00 before Hurricane Sandy hit.
Both defendant Kutchytska and third-party defendant Bella each denied having the boat moved or knowing who had actually removed it from defendant's steps. Defendant Kutchytska submitted two estimates for the cost of repairs to the front steps. One is for $8,100.00 and the second is for $7,500.00. Claimant also submitted an estimate for repair to defendant's steps. His is for $3,200.63.
Claimant testified that he did not have any insurance on the vessel and could not afford to hire a crane to retrieve the boat and replace it in the water. As noted above, about a week after locating the boat, claimant had the vessel transported from in front of defendant's home.
Both claimant and defendant produced photographs of the beached boat on defendant's steps. Claimant also had photographs showing the condition of the vessel prior to the storm and after he alleges it was removed from defendant's steps and left on the street.
Legal Issues Presented:
A. Did Claimant Abandon the Vessel?
In order to prevail on his cause of action, claimant must establish that he did not abandon the vessel. In general, abandoned property is defined as "property that the owner voluntarily surrenders, relinquishes or disclaims" [Black's Law Dictionary 7th Ed]. In admiralty litigation, courts generally have made a finding of "abandonment" of a vessel difficult to establish. They have applied a legal fiction to ships holding an owner of a vessel or the owner's successor retains title to a ship no matter how long it has been abandoned [Tait v US, 763 F. Supp. 2d 786, 797, (ED Va. 2011) citing Dluhos v Floating and Abandoned Vessel, 162 F.3d 63, 74 (2d Cr. 1998)]. There is generally a strong presumption against abandonment in maritime situations, even if the owner of the vessel appears to have taken actions that would constitute abandonment at common law [Benedict on Admiralty §150 (7th Ed. 2010)].
The law has created an "assumption of non-abandonment"which reflects a societal understanding that an owner forced to leave a vessel due to forces of nature beyond his or her control should not be easily divested of his or her ownership interest [Tait, supra, 797, citing Columbus-America Discovery, Group v Atlantic Mutual Ins. Co., 974 F.2d 450, 461 (4th Cir. 1992)]. Further, the amount of time that passes between relinquishment of control of the vessel and the subsequent discovery of the property by a third party is informative on the topic of abandonment but is not dispositive of that issue [Tait, supra, 797].
Based on the facts of this case, there was no abandonment of the beached vessel by the claimant even though he did not locate it until ten days after the hurricane struck. The facts established that owing to the nature of Hurricane Sandy and the displacement of boats and the distance they were carried, claimant acted reasonably expeditiously in [*4]locating and reclaiming his boat. Of course, had he had insurance, his carrier might have arranged for the removal and recovery of the vessel sooner. Therefore, New York's Abandoned Property Law §1307 and Navigation Law §138 are not applicable to this matter.
It appears that claimant's boat is classified as a "pleasure vessel" [Navigation Law §2 (6)( c)] and after the storm does fit the statutory definition of a "wreck," that is, it qualifies as "any wrecked property other than an abandoned historic shipwreck" [Navigation Law §2(34)].
Generally a vessel is qualified as a "wreck" if the cost of repairs exceeds one-half of the value of the boat. [Black's Law Dictionary]. Based on claimant's testimony this appears to be the case in regard to his vessel.[See also 11 NY Jur2d Boats, Ships and Shipping §234].
Navigation Law §130 sets out the procedure to be followed in regard to abandoned wrecked property. It provides:
The sheriff of every county in which any wrecked property shall be found, when no owner or other person entitled to the possession of such property shall appear, shall severally take all necessary measures for saving and securing such property; take possession thereof, in whose hands soever the same may be, in the name of the people of the state; cause the value thereof to be appraised by disinterested persons, and keep the same in some place to answer the claims of the persons entitled thereto.
There is no showing that after Hurricane Sandy either the sheriff or any other law enforcement person seized or attempted to seize claimant's vessel. In any case, the facts establish that the claimant did not abandon his vessel. It should be noted that the statute does not set forth any time frame after which a wreck is deemed to be abandoned so as to trigger the action of the sheriff under this statute. As noted above, owing to the nature of maritime law, each case is to be analyzed on its facts in order to determine if a vessel is abandoned. Because the value of the vessel may have exceeded $5,000.00, the police would be required to keep the property for three years after it came into their possession before it would be considered abandoned property [Personal Property Law §253].
Under the terms of the Abandoned Shipwreck Act in 1987 [43 USCA 2101], vessels such as claimant's would become the property of New York State if ownership could not be established.
Claimant has established that his vessel was not abandoned under maritime law standards.
B. Was Claimant's Vessel Beached as a Result of a Vis Major?
Claimant must establish that his boat was damaged as a result of either a vis major, or the actions of third parties, and he did not contribute to the damage. The burden of proof is on the party asserting this existence of one of these occurrences. Claimant asserts [*5]that his vessel wound up on defendant's front step as a result of Hurricane Sandy. This is an allegation that a vis major was involved, which, if true, absolves the claimant of any responsibility for damages caused by his vessel. Black's Law Dictionary defines "vis major" as a loss that results from a natural cause without the intervention of man and could not have been prevented by the exercise of prudence, diligence and care.
Claimant testified that his boat was "moored" in Great Kills Harbor, Staten Island, New York prior to Hurricane Sandy hitting. A moored vessel is one that is secured by lines or anchors. Claimant did not explain whether his boat was secured at a dock, or attached to a mooring location in open waters. The common understanding of claimant saying it was "moored" is that the boat was tied up to an anchorage in the harbor and not at a dock.
Under maritime law the owner of a moored vessel which breaks away from its moorings is presumed to be at fault [Crowley v Costa, 924 F. Supp. 2d 402 (2013) citing Martinez v United States, 705 F.2d 658, 661 (2d Cir. 1983)]. To assert a defense of inevitable accident, or act of nature or act of God, in other words, a vis major, the claimant must show that the application of human skill and precaution, and the proper display of nautical skill would not have prevented the damage which occurred.[Triton America, LLC v Duckett, 2011 WL 1675007, WD Wash].
It is well established that the affirmative defense of vis major or force of nature (formerly Act of God') is the concept of a natural force of such inevitability and irresistibleness that man cannot cope with it either to predict, forestall it or control it when it arrives [Crowley, supra, 417,citing, American River Transp. Co. v Paragon Marine Servs., Inc., 213 F. Supp. 2d 1035, 1060 (ED Mo. 2002)].
In other words, the damages must arise from natural causes, without human intervention, and which could not have been prevented by the exercise of reasonable care and foresight [Bay Point High & Dry LLC v New Palaces Casino, LLC, 46 So 3d 821, (Miss App 2010)].
Based on the testimony of the claimant, the court is not convinced that mooring the vessel, rather than securing the boat to a dock or taking it out of the water entirely, was the prudent course of action to follow in light of the weather forecast concerning the strength of the storm. Claimant would have to show that statistically there was no difference in where vessels wound up after the storm depending on whether they were moored, docked or on land. No such evidence was forthcoming.
Claimant has failed to establish that he is entitled to the defense of a force of nature causing the occurrence asserted on defendant's counterclaim.
C. Did Claimant Rebut the Presumption of Fault?
In general, under maritime law, when a drifting vessel causes damages to a stationary object, there is a presumption that the moving vessel is at fault [Simmons v Berglin, 401 Fed Appx 903, (CA 5 La 2010)]. This is known as "The Louisiana Rule" [*6]arising from the case, The Louisiana, 70 US164 (1865)]. An accident between a moving vessel and a stationary object is called an "allision" as opposed to a "collision" which is an accident involving two moving objects. [See also Hatt 65, LLC v Kreitzberg, 658 F.3d 1243 (CA 11 Fla. 2011)].
In order to rebut this presumption the claimant, as the owner of the moving vessel, must prove either that the accident was inevitable or the existence of a vis major as set forth above. As noted above, the claimant failed to convince the court that he took all reasonable steps in light of the anticipated severity of the impending storm to secure his vessel and that in spite of taking all of those reasonable steps the vessel came to rest against defendant's front steps. There is also some indication that Hurricane Sandy may not have actually qualified as a hurricane when it made landfall if its winds were less than 75 miles per hour, which of course probably is not relevant if your property suffered damage as a result of the storm.
The tests applied to determine if the presumption of fault of the vessel owner has been rebutted refer only to the period before the accident occurred. The actions of the claimant after his boat was located are irrelevant to the issue of whether he rebutted the presumption of his fault.
As noted above, the claimant has failed to establish that he took all reasonable precautions in light of the predicted storm to prevent his vessel from becoming free of its mooring. Therefore he has failed to rebut the presumption of his own fault contributing to causing his boat to break free and to come in contact with and damage defendant's property.
D. Was a Bailment Created?
Claimant alleges that the defendant was negligent in moving his boat from defendant's front steps. As noted above, both defendant and Bella deny moving the boat or having knowledge of who did. The question which arises is whether the arrival of claimant's vessel on defendant's real property somehow created a bailment between the claimant and the defendant requiring the defendant to take steps to preserve and protect claimant's vessel.
When property is delivered by one party to another with the intent that it will be returned, a bailment is created. Generally bailments arise from a contractual relationship between the parties. The person surrendering the property is called the bailor and the person receiving the property is the bailee.
Obviously there is no contractual relationship between claimant and defendant. Their lives became intertwined fortuitously. Hurricane Sandy dumped claimant's boat on defendant's front steps. Clearly no traditional bailment was created. However, in certain situations, the law creates a bailment when no contractual relationship exists. The law refers to this as a constructive or implied bailment [Cintron v Santiago, 2003 WL 1873743 (2003);Mack v Davidson, 55 AD2d 1027 (1977)]. [*7]
Because the bailee must have possession of the bailor's property, the first issue to be dealt with is whether defendant took possession claimant's vessel. Clearly defendant had no intention of taking possession or control over claimant's boat. Claimant has the burden of proving that the implied bailment was created. There is nothing in the record to establish that defendant ever took possession or control over the boat. For claimant to assert the defendant moved the vessel is only speculation. Although it is reasonable to assume defendant took control and moved the boat, there is no proof of that fact.
Because claimant's vessel does not qualify as "abandoned" property, the court must then determine if it is "lost property" under the law. If the vessel is "lost property" under the Personal Property Law, the "finder" of property becomes a bailee for the owner of the property, the bailor. It appears that claimant's boat would qualify as "lost property" under the statute [Personal Property Law §251(3)]. But a key to imposition of liability under the statute is that the "finder...first take possession of the lost property" [Personal Property Law §251(5)]. It cannot be concluded that the defendant is a finder under the statute because she did not take possession of the property. There is no showing that the defendant ever asserted any control over claimant's vessel. In fact, the claimant's boat trespassed onto and caused damage to defendant's property. The law would even permit the defendant to take reasonable steps to remove the encroaching vessel from her property.
Under the statute if the defendant was in possession of the property, her only obligation was to return it to the owner or turn it over to the police [Personal Property Law §252]. Claimant's testimony established that within ten days he had located the property and he had recovered actual possession within two weeks of the storm when he removed the boat. Defendant indicated that she attempted to contact various municipal agencies including the police department about the existence of the boat and its location. She alleges that there was never any response from any municipal agency in that regard.
Even if there was an implied bailment created, in order to hold the defendant liable, claimant would have to prove that the defendant was negligent in moving the boat. If an implied bailment is imposed on this fact situation, the court has to determine what type of bailment is created. That is, is it a bailment for the benefit of the bailee, a mutual benefit bailment, or a bailment for the benefit of the bailor. The classification of the bailment determines the degree of care the bailee must exercise in regard to the bailor's property.
It seems obvious that if an implied bailment is imposed, it is a bailment for the sole benefit of the bailor, or a gratuitous bailment. In this situation, the bailee must only exercise slight care and is responsible only for damages arising from gross negligence.
Claimant has the burden of proof. Claimant is alleging that the defendant became a constructive bailee, took possession of his vessel and moved the boat in an improper manner. There is no evidence that the defendant moved the boat. In addition, if the defendant had moved the boat, claimant must establish the proper method to move a beached boat and that the defendant failed to follow the accepted procedure for doing so. This is done by expert testimony and none was offered. If claimant could establish that the defendant did move the boat, claimant has the burden of proving that it was not done in a [*8]proper manner. He has failed to do so.
Claimant has not established that the defendant was ever in possession of the boat. No constructive bailment was created.
E. What is the Measure of Claimant's Damages?
In addition to establishing the liability of the defendant, which claimant has failed to do, claimant must also prove his damages. Under admiralty law, the measure of damages as a result of a maritime casualty depends on whether the vessel is deemed to be a total loss or if only partially damaged, whether the vessel can be economically repaired. A vessel is considered a constructive total loss when the cost of repairs exceeds the fair market value of the vessel immediately before the casualty occurred or after the repairs [Fishbones Inc. v Southern Boat Services of La., Inc., 849 So. 2d 803, 4th Cir. La App. (2003)].
Claimant submitted two estimates one for $8,700.00 (which does not include sales tax) and a second for $6,921.21, which does. The second one is in proper form in that it lists in detail the individual repairs that have to be made, the labor charge by service and the parts needed. The first estimate is totally devoid of those details and as such would be insufficient to be considered as a measure of damages under small claims court rules which permit two estimates to be used to establish damages. This leaves claimant with only one viable estimate.
There is another problem with the acceptable estimate. It does not differentiate between what damage was caused by the storm and what damage resulted from the boat being dragged from defendant's front steps. Claimant needed to bring the repair person in to testify in that regard and to be cross-examined as to his opinion as to what damage was caused by the storm and what resulted from it being moved. An additional issue created by the estimate is one of the items on the bill is the transportation charge for the boat from where it landed after the storm to the repair shop. Claimant cannot seek to be compensated in that regard from the defendant. He is responsible for that cost.
The third problem with claimant's damage claim is that he testified that the value of the boat pre-storm was about $5,500.00. This means that the cost of repairs exceeds the value. Under New York law, the measure of damages is the value of the property on the date of loss. Because the vessel was damaged to some extent by Hurricane Sandy, the $5,500.00 value, must be reduced by the storm damage to the vessel. The value on the date of loss is not the value before the storm. It is the value of the damaged vessel on the date it was discovered by the claimant about ten days after the storm. Claimant has not presented any evidence in that regard. Under maritime loss claimant's vessel would be a constructive total loss because the cost of repairs exceeds the fair market value.
Claimant also needed some evidence as to the fair market value of the vessel on the date of loss. This should be established by expert testimony, or at a minimum some recognized published authority for the valuation of vessels such as his. [*9]
In cases that are really common state law tort claims, the "maritime but local" rule applies and states may exercise their police powers concurrently with the federal government regarding maritime accidents [Palestina v Fernandez, 701 F2d 438 (5th Cir. 1983)]. This means that the court may apply New York rules in regard to determining liability and damages.
Claimant has failed to prove the amount of damages the vessel suffered as a result of initially being moved from defendant's steps.
F. Is the Defendant Entitled to Damages on Her Counterclaim?
Defendant has asserted a counterclaim for the damage to her front steps caused by claimant's boat. Defendant's counterclaim would fail if the claimant was free from any negligence in regard to the vessel becoming dislodged from its moorage. As set forth above, claimant failed to establish that he was free from any negligence in that regard and that the sole cause of the boat being transported to defendant's front steps was the severity of the storm. Claimant also failed to overcome the presumption of fault against a vessel owner arising from an allision.
The above being said, defendant has the burden of proving both liability and damages in regard to her counterclaim. Even if the claimant may have some liability for the accident, defendant has failed to prove her damages. Defendant has submitted two estimates in regard to the step repairs. One is for $8,100.00, the second for $7,500.00. Both of these estimates are insufficient as a matter of law. Neither one is prepared by a home improvement contractor licensed in New York and such repair work must be performed by a licensed contractor to be recoverable as damages [General Business Law §770 et seq.; 6 Rules of the City of New York§2-221 et seq.]. Although the second one is from a contractor licensed in New Jersey, that is not acceptable for work to be performed in New York. Also neither estimate differentiates between materials and labor and neither includes sales tax. For some reason the lesser of the two estimates includes more work than the more expensive one for repairs beyond the damage to the steps. This calls into doubt the credibility of the higher estimate.
Ironically, claimant submitted an estimate for the step repairs in the amount of $3,200.83. This too is unacceptable. It has the wrong street address, 28 Groton Street, rather than 25 Groton, and there is no indication that the person giving the estimate is licensed as a home improvement contractor
Defendant's counterclaim is dismissed on the merits.
G. Did Claimant Prove the Vessel is Properly Registered?
New York's Vehicle and Traffic Law, Article 48, requires all vessels using the navigable waters of the state to be registered with the Department of Motor Vehicles. Claimant in his papers alleged that the boat was properly registered and included a registration number in his exhibits. If the registration of the vessel was an issue, then claimant needed to produce the actual registration and show that it was current. [*10]Fortunately the issue of registration and ownership of the vessel is not an issue. Claimant should have produced some evidence that he was the owner of the vessel as part of his prima facie case. However, that was not challenged by the defendant.
Remarkably there does not appear to be any requirement in New York for the owner or operator of a pleasure vessel to maintain any liability insurance in order to register a boat. This makes operators self-insurers and exposes New York taxpayers to having to bear the cost of the care for people suffering personal injuries as a result of accidents with uninsured boat owners. Unless the thought is if you can afford a boat you must have assets to prevent you from being judgment proof.
H. Did Defendant Prove Her Third Party Claim?
Defendant's third party claim against Bella is dismissed. There is no showing Bella damaged defendant's property. The third party claim was only viable if claimant proved his claim against the defendant. Claimant failed to do so. There is no evidence that either defendant or Bella moved the boat. Although it may not be credible that neither defendant nor Bella knows who moved claimant's boat from defendant's front step, claimant has the burden of proof and he failed to establish that the defendant did it. Claimant had no direct claim against Bella and defendant did not establish that Bella moved the vessel.
The best explanation appears to be that a Buddhist Mystic visiting the Jacques Marchais Tibetan Museum on Lighthouse Hill, used his power of levitation to move claimant's vessel from defendant's front steps, silently, in the middle of the night.
Conclusion:
Claimant's cause of action is dismissed on the merits.
Defendant's counterclaim is dismissed on the merits.
Defendant's third party action is dismissed on the merits.
Third party defendant's counterclaim is dismissed on the merits.
Exhibits, if any, will be available at the office of the clerk of the court thirty days after receipt of a copy of this decision.
The foregoing constitutes the decision and order of the court.
Dated:
Staten Island, NY HON. PHILIP S. STRANIERE
Judge, Civil Court
ASN byon
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