Tang v Damadian

[*1] Tang v Damadian 2021 NY Slip Op 21191 Decided on July 2, 2021 Supreme Court, Kings County Cohen, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on July 2, 2021
Supreme Court, Kings County

Jonathan Tang, deceased, by and through, Timothy Tang, as administrator of the Estate of Jonathan Tang, Plaintiff,

against

Jevan Damadian and Donna Damadian, Defendants.



6926/2015



For Plaintiff: Kara L. Campbell, Finkelstein & Partners, 1279 Route 300, P.O. Box 1111, Newburgh, New York 12551.

For Defendants: John B. Saville, Lewis Johs Avallone Aviles, LLP, One CA Plaza, Suite 225, Islandia, New York 11749
Devin P. Cohen, J.

Recitation, as required by CPLR §2219 (a), of the papers

considered in the review of this Motion

Papers Numbered

Notice of Motion and Affidavits Annexed 1

Order to Show Cause and Affidavits Annexed

Answering Affidavits 2

Replying Affidavits 3

Exhibits

Other

Upon the foregoing papers, defendant's motion for summary judgment (Seq. 009) is decided as follows:

Introduction

The decedent plaintiff, Jonathan Tang, through Timothy Tang as administrator ("plaintiff") commenced this action against defendant [FN1] for damages caused by his death while using defendant's kayak. Plaintiff asserts causes of action for negligence, violation of Navigation Law § 40, and wrongful death.

Factual Background

Defendant testified at his deposition that he owned a home in Hadley, New York (defendant's EBT at 15-17). He further testified as follows: The home was on 112 acres and across the road from a lake called Stewart's Reservoir, but the property itself has no direct lake access (id. at 17-18). Defendant rented the home to Tyler Vestel and several of Mr. Vestel's friends for the weekend of September 20, 2014 (id. at 55, 63-65). He advertised the property for rent on VRBO (id. at 46). Plaintiff provides a copy of the listing, which described the property as a 7 Bedroom, 3 ½ Bathroom home. It also states that Stewart Reservoir was across the street from the property and that a canoe and two kayaks were available for use. Stewart Reservoir is owned by Niagara Mohawk, and there was a dam on both ends of the lake (id. at 18, 62). Defendant claims to have been out on the reservoir hundreds of times and that he has boated around the entire body of water (id. at 63).

Defendant further testified as follows: on Saturday morning, September 20, 2014, at his guests' request, defendant provided them with access to his canoe and two kayaks, as well as life jackets (id. at 56, 76-78). He purchased the kayaks new from Walmart at the beginning of the summer of 2014 (id. at 57-58). Defendant kept the kayaks on a trailer outside (id. at 59). He never experienced any problems with the pink kayak used by plaintiff at any time prior to the date of the incident (id. at 146). He last used the kayak a week or two before of the incident (id. at 146-47). Defendant also submits an affidavit, to which he attaches photographs of the life vests and floatation cushions that he claims he made available to his guests.

On the morning of the occurrence, defendant loaded the kayaks and canoe onto his jeep and drove them down to the beach. (id. at 106-107). He assumed that the cushions and life jackets were in them (id. at 107-08). When the group arrived at the reservoir, defendant asked them if they had taken the life jackets, but they had not (id. at 84). Nevertheless, defendant allowed the renters to use the boats without the life jackets (id. at 84, 95) That afternoon, defendant learned that someone had drowned in the lake (id. at 99). Defendant went to the reservoir and observed that one of his kayaks was 200 feet from the shoreline (id. at 112-13). He observed no current in the water and the weather was sunny and 60-70 degrees (id. at 113).

Samuel LaRussa, one of the guests, testified that he and two others paddled in a canoe until he heard yelling (LaRussa EBT at 56-59). He further testified as follows: He could not see who was yelling because an island was in the way (id. at 59). They paddled toward the yelling and he saw a kayak and splashing near the kayak and assumed it was a person in distress (id. at 61-65). When they arrived at the kayak the splashing had stopped (id. at 67-71). Others joined them and they searched the area (id. at 71-75). He did not realize it was plaintiff who was [*2]missing until after the search had begun (id. at 75). The group that was looking for plaintiff did not find him (id. at 75-78). The police arrived and took over the search (id. at 79-81).

Bonnie Yen, another of the guests, was not present when her fellow guests acquired the "boat stuff" so she was not able to state what was discussed about it (Yen EBT at 17-18). She was in the canoe with Mr. LaRussa when they heard the yelling (id. at 21-23). Ms. Yen gave an account of the incident similar to Mr. LaRussa's.

Plaintiff submits affirmed statements given to law enforcement by Jay Voit and Christopher Gaffney, both rental guests at defendant's home on September 20, 2014. In those statements, they state that they saw plaintiff in distress in the water and attempted to get to his location and help him. When they arrived at plaintiff's location in the water, they were unable to find him. Mr. Gaffney also stated that there were no life jackets.

Michelle Q. Phan, one of the guests, submitted an affidavit (Phan affidavit at ¶ 1). In her affidavit, she states that life vests were available, but that plaintiff did not use one when he took out the kayak (id. ¶ 2). She states that, prior to plaintiff's incident, other guests had used the kayaks "for several hours without incident" (id.).

Timothy Tang, plaintiff's brother, testified at his deposition that plaintiff was a student at Columbia University Medical School at the time of the subject event (Tang EBT at 20). What he knows about the subject event he learned from conversations with those who were present at the time. These conversations are hearsay, and not admissible (Viviane Etienne Med. Care, P.C. v Country Wide Ins. Co., 114 AD3d 33, 53 [2d Dept 2013], affd, 25 NY3d 498 [2015]). In Timothy Tang's opinion, Jonathan Tang knew how to swim, and that Jonathan had taken taken one year of swimming classes at Stuyvesant High School and had passed a swimming proficiency test at that time (Tang EBT at 44).

Deputy Joseph Mancici testified at his deposition that, upon receiving the call regarding the subject incident, he was the first to arrive (Mancini EBT at 21-22). He did not recall any statements from any of the surviving students that they had any difficulty canoeing or kayaking around the pond between 12 noon and the time of the incident (id. at 57). He also did not recall any discussion about the water being rough (id.).

Sergeant Guy Gurney of the Saratoga County Sheriff's Office testified at his deposition that he and his deputies responded to the scene when the subject incident was reported (Gurney EBT at 17-18). He also identified the incident report prepared by Deputy Mancini (id. at 20), and the report written by himself (id. at 42). It was his understanding that plaintiff was not wearing a personal floatation device at the time of the incident (id. at 54-55). As part of his investigation, he inspected the kayak plaintiff used and found no holes in the kayak (id. at 68). He instructed that the dam grates be raked, but the body was not found (id. at 45). The body was recovered the next day by Sergeant Zocco (id. at 46).

The report by Deputy Mancini states, in relevant part, that "patrol" responded to a call that someone had gone under the water in Stewart Pond and not resurfaced. Patrol requested a supervisor and dive team. Patrol interviewed those present and learned that they were staying in a rented house nearby. Some of them had brought a canoe and two kayaks to the water, but no life jackets. They took turns using the vessels. At some point, plaintiff took out a kayak and subsequently was seen by others in the water and in distress. Some of those people attempted to get to plaintiff, but they were not successful. The fire department arrived later and used boats [*3]and divers to search for plaintiff, but could not find him by the time the report was written.

Sergeant Gurney's report provides much of the same information. Sergeant Gurney adds that Kevin Granger's divers reported that the depth of the water where plaintiff had disappeared was 55 to 65 feet. He also reported that the pumps from the dam were active at the time plaintiff had disappeared and that the current at that time was "quite strong".

Kevin Granger of Corinth Volunteer Fire Department testified at his deposition that he responded to the subject incident on the afternoon of September 20 (Granger EBT at 14-15). He recalled that, when he arrived on scene, he did not notice any currents in the area where it was believed plaintiff had disappeared (id. at 19-20, 24). He opined that the water condition that he observed from the shore when he arrived on scene was not such that would cause a "boat" to tip over (id. at 84). Conversely, and perhaps more significantly, he recalled that his divers told him that they were "getting pushed around" by the currents because the dam was open and water was flowing through the dam (id. at 24). He testified that his team conducted two dives but did not recover plaintiff's body (id. at 28, 32).

Sergeant Michael A. Zocco testified at his deposition that he was a member of the Sheriff's Dive Team (Zocco EBT at 6-7). He further testified as follows: Mr. Tang's body was recovered a day after the incident (id. at 36). Sgt. Zocco was only at the scene the day after the incident when he dove on September 21,2014 (id.). He noted that the area where plaintiff disappeared was the same location where the body was recovered, which he took to mean that there were not very heavy currents (id. at 37-39). Sgt. Zocco found plaintiff's body at the bottom of the lake, approximately 20-25 feet deep, and he was not wearing a life jacket (id. at 23).

The parties submit additional evidence with regard to the current in the water where plaintiff drowned. Sgt. Gurney testified that he was is familiar with the body of water known as Stewart's Reservoir or Stewart's Pond (Gurney EBT at 15). He has canoed in it, boated on it, and fished in it, but not for the past six to seven years (id. at 16). He explained that whenever the valves are open to drain water, it causes an undertow, an "actual pulling of the water" (id. at 43-44). Likewise, Sgt. Zocco testified that, if the dam is open, it creates a current that draws toward the dam (Zocco EBT at 14). The closer to the dam, the stronger the current (id. at 15). He believed that the current in the area where he found plaintiff was "not so bad" (id.). Both Mr. LaRussa and Deputy Mancini testified that they did not observe any waves or whitecaps in the water around the time of the incident (LaRussa EBT at 105; Mancini EBT at 39).

Defendant testified that he has boated on the lake hundreds of times and never observed any current as a result of pumps from the dam (defendant's EBT at 63, 124). He explained that the dam is a half mile or more from the beach where the students kayaked (id. at 125). He claimed that there is a separate area by the dam where the area is roped off because of the current preventing people from going anywhere near it (id. at 124, 127).

In addition, defendant testified that there were signs at the beach that said, "no swimming, no camping, no fires", but "[n]obody bothers with them, they just go, everybody, all the time" (id. at 80-81). At his deposition, defendant identified a sign located one half mile from the beach, near the dam, which indicates "Danger" and "Stay Back" (id. at 127). He testified that cables and ropes block anyone from going near the area around the sign (id.).

Lastly, plaintiff submits an affidavit from Gerald M. Dworkin, together with Mr. Dworkin's report. Mr. Dworkin states that he is an Aquatics Safety and Water Rescue [*4]Consultant. Mr. Dworkin notes that Federal law requires, "that a properly fitting wearable life jacket be provided for each and every person aboard a recreational vessel, including canoes and kayaks" (Dworkin Report at 8).[FN2] Mr. Dworkin opines that, as the boats' owner, defendant should have confirmed that each kayak and canoe had wearable life jackets, and that those using those vessels must wear one (id. at 18, 19). Dworkin notes, "Asking the group if they brought the life jackets did not discharge Damadian of his legal obligation to provide life jackets and to require that everyone using a kayak or a canoe would have a wearable life jacket" (id. at 20). Dworkin concludes that defendant's "conduct, namely his actions and inactions, were egregious, palpably unreasonable, and grossly negligent, and caused Jonathan Tang's death" (id. at 20-21).

Analysis

On a motion for summary judgment, the moving party bears the initial burden of making a prima facie showing that there are no triable issues of material fact (Giuffrida v Citibank, 100 NY2d 72, 81 [2003]). Once a prima facie showing has been established, the burden shifts to the non-moving party to rebut the movant's showing such that a trial of the action is required (Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]).

a. Navigation Law § 40

Defendant seeks dismissal of plaintiff's claim for violation of Navigation Law § 40[1][a], which provides that, "every pleasure vessel and every rowboat, canoe and kayak shall have at least one wearable personal flotation device for each person on board, which shall be of a type approved by the United States coast guard and shall be in good condition." Navigation Law § 40[1][c] says, "every operator or person in charge or control of a pleasure vessel, rowboat or canoe, as described in paragraph[] [a] of this subdivision, shall be responsible for compliance with the provisions of this subdivision."

The plain language of the statute states that a vessel shall have a wearable personal flotation device for each person aboard that vessel. Based on this clear directive, it is not sufficient for the flotation device to merely be available somewhere, as defendant argues. The flotation device for each person must be on board. Furthermore, as the owner of the kayak plaintiff used, defendant was a "person in charge or in control of" the kayak.[FN3] It was his responsibility to ensure that plaintiff and all those using the kayaks actually had the flotation device once aboard the vessel. Once his guests expressed their intention not to wear the flotation devices, defendant could have withheld that permission to use the vessels until his guests agreed to wear the flotation devices. Additionally, defendant submits no evidence that the other flotation devices which may have been in the kayaks at some point were sufficient to be considered a "wearable personal flotation device for each person on board, which shall be of a [*5]type approved by the United States coast guard", as required by the statute.[FN4]

b. Negligence Based on a Defective Kayak

Defendant also seeks summary judgment dismissing of plaintiff's claim of negligence based on a defective kayak. Defendant argues that he was not negligent based on his testimony that the kayak was in good condition and that he had used it two weeks prior (defendant's EBT at 146-48). Mr. LaRussa testified that, after plaintiff had disappeared under the water, others used the same kayak to search for plaintiff (LaRussa EBT at 132-33). Dr. Phan states that others used the kayak prior to plaintiff (Phan affidavit at 2). Sgt. Gurney testified that he inspected the kayak and found no holes in it (Gurney EBT at 68). Lastly, Timothy Tang testified about what others told him about the kayak, but this information is hearsay (Viviane Etienne, 114 AD3d at 53).

While the court does not find that there was any damage to the kayak itself, such a finding does not necessarily resolve whether the kayak was"seaworthy" at the time of the accident (Waldron v Moore-McCormack Lines, Inc., 386 US 724, 726 [1967] ["As regards equipment, the classic case of unseaworthiness arises when the vessel is either insufficiently or defectively equipped] [emphasis added]). As this court has already found, there are triable questions of fact about whether the kayak was sufficiently equipped.

c. Assumption of Risk

"The assumption of risk doctrine applies where a consenting participant in sporting and amusement activities is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks" (Ramos v Michael Epstein Sports Productions, Inc., 173 AD3d 1079, 1080-81 [2d Dept 2019], quoting Bukowski v Clarkson Univ., 19 NY3d 353, 356 [2012] [internal quotations omitted]). "Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation" (Franco v 1200 Master Assn., Inc., 177 AD3d 858, 858 [2d Dept 2019]).

Here, the nature and scope of the risk are disputed because there is conflicting circumstantial evidence about whether there was a dangerous, and perhaps hidden, current in the water when plaintiff disappeared. For example, Sergeant Gurney's report stated that, when plaintiff disappeared, the pumps from the dam were active and that the current at that time was "quite strong". Mr. Granger of the local fire department recalled that his divers told him that they were "getting pushed around" by the currents because the dam was open and water was flowing through the dam (Granger EBT at 24).

Conversely, Sgt. Zocco, who found plaintiff's body the next day, testified the current in the area where he found plaintiff was "not so bad" (Zocco EBT at 15). He testified that he found plaintiff in the same location as plaintiff disappeared, which he took to mean that there were not very heavy currents (id. at 37-39). Additionally, defendant testified that the area near the dam that was roped off due to current was not at the beach, but rather one-half mile from where his guests were (defendant EBT at 124-27). Because the nature and extent of the risk is unresolved, plaintiff's awareness or appreciation of the risk also remains a triable question of fact.

Furthermore, there is conflicting evidence about whether the risk was concealed beneath the water (Chiaramonte v Town of Smithtown, 192 AD3d 657 [2d Dept 2021] [a participant [*6]cannot assume a concealed risk]). On one hand, defendant acknowledged that there were signs at the beach that stated "no swimming, no camping, no fires" (defendant's EBT at 80-81). Conversely, Mr. LaRussa and Deputy Mancini testified that they did not observe any waves or whitecaps in the water around the time of the incident (LaRussa EBT at 105; Mancini EBT at 39). Defendant also claims that he has never observed any current in the water, and that people routinely ignore the signs at the beach (defendant's EBT at 80-81). Additionally, it is reasonable to assume, for purposes of this motion, that plaintiff believed the area was safe because defendant, who was knowledgeable about the area, drove them there (defendant's EBT at 63, 106-07, 124).

Accordingly, there is no evidence that plaintiff was aware of the danger (cf Ferrari v Canoe Rental, Inc., 143 AD3d 937, 938 [2d Dept 2016] [plaintiffs assumed the risk of canoeing at low tide because they were aware of the tidal times and associated risks of canoeing at such times]). Rather, there are triable questions of fact concerning the presence and strength of any current at the time and place of the incident, and whether plaintiff was made aware, or should have been aware, of any such danger.

Defendant also argues that he is not liable because plaintiff assumed the risk of kayaking without a life jacket, despite being a weak swimmer. However, the record contains no evidence to support defendant's assertion. To the contrary, Timothy Tang testified that plaintiff took swimming lessons and was able to pass a swim test in high school (Tang EBT at 44). There is no other credible information about plaintiff's swimming prowess, and the available evidence does not suggest that plaintiff's swimming ability was weak. Furthermore, the possibility that plaintiff lacked experience in water-related activity might impose a greater duty on defendant to inform plaintiff of the risks and weigh against a finding that plaintiff assumed the risk (Maddox v City of New York, 66 NY2d 270, 278 [1985] [plaintiff's "awareness of risk is not to be determined in a vacuum. It is, rather, to be assessed against the background of the skill and experience of the particular plaintiff"]).

d. Negligence Based on a Failure to Warn

Defendant also moves to dismiss plaintiff's claim for defendant's failure to warn plaintiff about the alleged currents in the water when the dam is active. As previously discussed, whether the current existed and was apparent to plaintiff are triable questions of fact (Shah v Mercy Med. Ctr., 71 AD3d 1120 [2d Dept 2010] ["A condition . . . may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted"]).

Assuming that the currents existed, defendant argues that he had no duty to warn about dangers not on his property (Galindo v Town of Clarkstown, 305 AD2d 538, 538-39 [2d Dept 2003], affd, 2 NY3d 633 [2004]). However, defendant advertised his property for rent based on the access to, and use of, the reservoir. Defendant profited from such use by his guests, and by the guests' use of the kayaks he owned as well. Defendant professed to have substantial knowledge of the lake as a result of his extensive use of the lake for boating. In this specific case, defendant also put the kayaks in his vehicle and drove plaintiff and the other guests to the water. In taking these actions, defendant assumed a duty of care to alert his guests to any potential dangers in the lake (Borrerro v Haks Group, Inc., 165 AD3d 1216, 1217 [2d Dept 2018] [The general duty of care in a negligence action requires an individual "to use that degree of care that a reasonably prudent person would have used under the same circumstances"]).

Defendant also argues that it is not required to warn anyone about "natural, transitory conditions of the ocean floor" (Mugnai v Town of Oyster Bay, 163 AD3d 835, 836 [2d Dept 2018]). However, the currents were caused not by natural conditions, but by a dam when the dam pumps are active.

e. GOL § 9-103

Defendant also argues that GOL § 9-103 provides him with immunity for any "ordinary negligence" attributed to inviting plaintiff to kayak on the reservoir. However, section 9-103 does not apply here because defendant does not own the reservoir. In fact, defendant may be liable for more than mere negligence if defendant knew of the risks in the reservoir and drove plaintiff and the guests to the reservoir anyway. Furthermore, the protection only applies to property that is suitable for the activity (Vannatta v Vil. of Otisville, 126 AD3d 963, 964 [2d Dept 2015]). There is a question of fact as to whether the property is suitable because the record contains conflicting evidence about the water current in the reservoir when the dam is active.

Conclusion

For the reasons stated above, defendant's motion is denied.

This constitutes the decision and order of the court.

DATE July 2, 2021

DEVIN P. COHEN

Justice of the Supreme Court Footnotes

Footnote 1:Plaintiff originally commenced the action against defendants Jevan and Donna Damadian. By stipulation, dated October 3, 2018, plaintiff discontinued his claims against Donna Damadian, although the caption of this case was never amended. All references to defendant in this decision and order are to Jevan Damadian and the caption is hereby amended to remove Donna Damadian.

Footnote 2:Mr. Dworkin does not cite the law, but it is 46 CFR § 180.71.

Footnote 3:It is worth noting that Navigation Law § 48 holds defendant liable for damage due to the negligence of a permissive user of the vessel (see also Pollock v Collipp, 124 AD2d 647, 650 [2d Dept 1986])

Footnote 4:The parties do not discuss any possible duty on plaintiff's part to also ensure that he wear a life jacket. Accordingly, any issue of comparative fault is reserved for trial.