Preview
FILED: NEW YORK COUNTY CLERK 06/09/2022 05:28 PM INDEX NO. 154000/2018
NYSCEF DOC. NO. 167 RECEIVED NYSCEF: 06/09/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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DARRYL NOWAK, Index No. 154000/2018
Plaintiff,
AFFIRMATION IN SUPPORT
-against- OF MOTION FOR LEAVE TO
AMEND
SEA WOLF MARINE TRANSPORTATION, LLC,
WITTICH BROTHERS MARINE, INC., and
WEEKS MARINE, INC.
Defendants.
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GARTH S. WOLFSON, an attorney duly admitted to practice law
before the courts of the State of New York, affirms, upon
information and belief and under the penalties for perjury, as
follows:
1. I am a partner with the firm of Mahoney & Keane, LLP,
counsel of record for defendants SEA WOLF MARINE TRANSPORTATION,
LLC (“SEA WOLF”) and WITTICH BROTHERS MARINE, INC. (“WBM”), in the
above-captioned civil action. As such, I am familiar, based upon
my review of the file maintained by my office, with the pleadings
and proceedings heretofore had in this matter.
2. Herewith attached are true copies of the following:
Exhibit A: Plaintiff’s Amended Complaint;
Exhibit B: SEA WOLF’s and WBM’s Answer to Amended
Complaint; and
Exhibit C: Proposed Amended Answer to Amended
Complaint.
3. “A party may amend his or her pleading, or supplement
it by setting forth additional or subsequent transactions or
occurrences, at any time by leave of court or by stipulation of
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all parties. Leave shall be freely given.” N.Y. Civ. Prac. L. &
R. 3025(b); see also, Edenwald Contracting Co. v. City of N.Y.,
60 N.Y.2d 957, 471 N.Y.S.2d 55, 459 N.E.2d 164 (1983) (“Mere
lateness is not a barrier to the amendment. It must be lateness
coupled with significant prejudice to the other side.”)
(internal quotation marks omitted); Board of Managers of the
Porter House Condominium v. Delshah60 Ninth LLC, 2022 N.Y. Slip
Op. 03680, 2022 WL 2026805 (1st Dep’t Jun. 7, 2022) (“While over
two years had passed since defendant served its original answer,
discovery was still ongoing Plaintiff’s claim of significant
prejudice is unpersuasive, as all it points to is mere delay,
which is insufficient to show prejudice”) (citations omitted);
Johnson v. Montefiore Medical Center, 203 A.D.3d 462, 164 N.Y.S.
3d 599 (1st Dep’t 2022) (“[O]n a motion for leave to amend, [the
movant] need not establish the merit of its proposed new
allegations, but simply show that the proffered amendment is not
palpably insufficient or clearly devoid of merit”) (internal
quotation marks omitted); Lanpont v. Savvas Cab Corp., 244 A.D.
2d 208, 664 N.Y.S. 2d 285 (1st Dep’t 1997) (“[I]n the absence of
surprise or prejudice, it is an abuse of discretion, as a matter
of law, for the trial court to deny leave to amend an answer
during or even after trial.”); Marks v. Macchiarola, 221 A.D. 2d
217, 643 N.Y.S. 2d 56 (1st Dep’t 1995) (“Leave to amend shall be
freely given at any time, even as to defenses deemed “waived”
pursuant to CPLR 3211(e) when not raised either by . . . motion
or in the responsive pleading.” (internal quotation marks and
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citations omitted); Teska v. The New York Hospital-Cornell
Medical Center, 104 A.D.2d 329, 479 N.Y.S.2d 32 (1st Dep’t 1984)
(“It is clear that a meritorious defense is stated if the facts
asserted in the proposed defense are confirmed. The
circumstances accordingly provide no support for departing from
the clear mandate set forth in the above-quoted language from
CPLR § 3025(b).”).
4. Plaintiff claims to have sustained personal injuries
when transiting from the WEEKS MARINE, INC. barge upon which he
was working to the SEA WOLF/WBM Tug. See, generally, Exhibit A.
No ad damnum was included in the Amended Complaint. Id. But,
after several discovery-related motions, plaintiff finished
supplementing his bill of particulars on February 14, 2022 and
was then finally deposed on May 27, 2022, at which time he
confirmed his allegations of permanent total disability and
damages which, if proven, might approach or exceed the value of
the Tug.
5. Pursuant to the Limitation of Liability Act, vessel
owners may seek cap their exposure to the value of the vessel
and any pending freight. See, 46 U.S.C. § 30501 et seq. This can
be done either by commencing a separate limitation proceeding in
the federal court within six months or by raising it as a defense
in connection with the underlying claim without the six-month
time-constraint. See, Signal Oil & Gas Co. v. Barge W-701, 654
F.2d 1164 (5th Cir. 1981) (six-month limitation on petition by
vessel owner for limitation of liability is not applicable to
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defense of limitation of liability), cert. denied, 102 S. Ct.
1440, 455 U.S. 944, 71 L.Ed.2d 656,82 (1982); accord, Deep Sea
Tankers, Ltd. V. The Long Branch, 258 F. 2d 757(2d Cir. 1958),
cert. denied, 79 S. Ct. 316, 358 U.S. 933, 3 L.Ed.2d 511 (1959);
The Chickie, 141 F.2d 80 (3 Cir. 1944).
6. As such, on June 7, 2022, and before SEA WOLF and WBM
were scheduled to be deposed, Your Affirmant approached counsel
for plaintiff and the co-defendant, WEEKS MARINE, INC., to put
them on written notice of the defense and seek their consent to
the amendment. As of the time of this writing, no response has
been received.
7. Given its statutory basis, courts should refuse to
grant a vessel owner leave to amend his answer to raise a
limitation of liability defense “only under the most exigent
circumstances.” Baham v. Atlantic, Gulf and Pac. Co., 333 F.
Supp. 680, 681 (E.D. Pa. 1971); see also, Sana v. Hawaiian
Cruises, Ltd, 181 F.3d 1041, 1047 (9th Cir. 1999) (“Like the
other circuits that have examined this issue, we conclude that
the time limitation in §185 does not apply in these
circumstances. The court did not err in allowing Hawaiian
Cruises to amend its answer.”).
8. Moreover, it is difficult to imagine how plaintiff
might be prejudiced, as discovery is still ongoing.
9. The defense appears as the “Eighteenth” Affirmative
Defense, at Paragraph “Forty-Second”, of the proposed amended
pleading. See, Exhibit C. No other substantive changes are
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included. Compare Exhibit B with Exhibit C.
WHEREFORE, SEA WOLF and WBM urge the Court to grant their
motion for leave to amend their Answer and award to SEA WOLF and
WBM such other and further relief the Court may deem just and
proper.
Dated: New York, New York
June 9, 2022
Respectfully submitted,
By: s/ Garth S. Wolfson ________
Garth S. Wolfson
MAHONEY & KEANE, LLP
Attorneys for Defendants
SEA WOLF MARINE
TRANSPORTATION, LLC and
WITTICH BROS. MARINE, INC.
s/h/a WITTICH BROTHERS MARINE,
INC.
40 Worth Street, Suite 602
New York, New York 10013
(212) 385-1422
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Preview
FILED: NEW YORK COUNTY CLERK 06/09/2022 05:28 PM INDEX NO. 154000/2018 NYSCEF DOC. NO. 167 RECEIVED NYSCEF: 06/09/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------------------------x DARRYL NOWAK, Index No. 154000/2018 Plaintiff, AFFIRMATION IN SUPPORT -against- OF MOTION FOR LEAVE TO AMEND SEA WOLF MARINE TRANSPORTATION, LLC, WITTICH BROTHERS MARINE, INC., and WEEKS MARINE, INC. Defendants. ------------------------------------x GARTH S. WOLFSON, an attorney duly admitted to practice law before the courts of the State of New York, affirms, upon information and belief and under the penalties for perjury, as follows: 1. I am a partner with the firm of Mahoney & Keane, LLP, counsel of record for defendants SEA WOLF MARINE TRANSPORTATION, LLC (“SEA WOLF”) and WITTICH BROTHERS MARINE, INC. (“WBM”), in the above-captioned civil action. As such, I am familiar, based upon my review of the file maintained by my office, with the pleadings and proceedings heretofore had in this matter. 2. Herewith attached are true copies of the following: Exhibit A: Plaintiff’s Amended Complaint; Exhibit B: SEA WOLF’s and WBM’s Answer to Amended Complaint; and Exhibit C: Proposed Amended Answer to Amended Complaint. 3. “A party may amend his or her pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of 1 1 of 5 FILED: NEW YORK COUNTY CLERK 06/09/2022 05:28 PM INDEX NO. 154000/2018 NYSCEF DOC. NO. 167 RECEIVED NYSCEF: 06/09/2022 all parties. Leave shall be freely given.” N.Y. Civ. Prac. L. & R. 3025(b); see also, Edenwald Contracting Co. v. City of N.Y., 60 N.Y.2d 957, 471 N.Y.S.2d 55, 459 N.E.2d 164 (1983) (“Mere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side.”) (internal quotation marks omitted); Board of Managers of the Porter House Condominium v. Delshah60 Ninth LLC, 2022 N.Y. Slip Op. 03680, 2022 WL 2026805 (1st Dep’t Jun. 7, 2022) (“While over two years had passed since defendant served its original answer, discovery was still ongoing Plaintiff’s claim of significant prejudice is unpersuasive, as all it points to is mere delay, which is insufficient to show prejudice”) (citations omitted); Johnson v. Montefiore Medical Center, 203 A.D.3d 462, 164 N.Y.S. 3d 599 (1st Dep’t 2022) (“[O]n a motion for leave to amend, [the movant] need not establish the merit of its proposed new allegations, but simply show that the proffered amendment is not palpably insufficient or clearly devoid of merit”) (internal quotation marks omitted); Lanpont v. Savvas Cab Corp., 244 A.D. 2d 208, 664 N.Y.S. 2d 285 (1st Dep’t 1997) (“[I]n the absence of surprise or prejudice, it is an abuse of discretion, as a matter of law, for the trial court to deny leave to amend an answer during or even after trial.”); Marks v. Macchiarola, 221 A.D. 2d 217, 643 N.Y.S. 2d 56 (1st Dep’t 1995) (“Leave to amend shall be freely given at any time, even as to defenses deemed “waived” pursuant to CPLR 3211(e) when not raised either by . . . motion or in the responsive pleading.” (internal quotation marks and 2 2 of 5 FILED: NEW YORK COUNTY CLERK 06/09/2022 05:28 PM INDEX NO. 154000/2018 NYSCEF DOC. NO. 167 RECEIVED NYSCEF: 06/09/2022 citations omitted); Teska v. The New York Hospital-Cornell Medical Center, 104 A.D.2d 329, 479 N.Y.S.2d 32 (1st Dep’t 1984) (“It is clear that a meritorious defense is stated if the facts asserted in the proposed defense are confirmed. The circumstances accordingly provide no support for departing from the clear mandate set forth in the above-quoted language from CPLR § 3025(b).”). 4. Plaintiff claims to have sustained personal injuries when transiting from the WEEKS MARINE, INC. barge upon which he was working to the SEA WOLF/WBM Tug. See, generally, Exhibit A. No ad damnum was included in the Amended Complaint. Id. But, after several discovery-related motions, plaintiff finished supplementing his bill of particulars on February 14, 2022 and was then finally deposed on May 27, 2022, at which time he confirmed his allegations of permanent total disability and damages which, if proven, might approach or exceed the value of the Tug. 5. Pursuant to the Limitation of Liability Act, vessel owners may seek cap their exposure to the value of the vessel and any pending freight. See, 46 U.S.C. § 30501 et seq. This can be done either by commencing a separate limitation proceeding in the federal court within six months or by raising it as a defense in connection with the underlying claim without the six-month time-constraint. See, Signal Oil & Gas Co. v. Barge W-701, 654 F.2d 1164 (5th Cir. 1981) (six-month limitation on petition by vessel owner for limitation of liability is not applicable to 3 3 of 5 FILED: NEW YORK COUNTY CLERK 06/09/2022 05:28 PM INDEX NO. 154000/2018 NYSCEF DOC. NO. 167 RECEIVED NYSCEF: 06/09/2022 defense of limitation of liability), cert. denied, 102 S. Ct. 1440, 455 U.S. 944, 71 L.Ed.2d 656,82 (1982); accord, Deep Sea Tankers, Ltd. V. The Long Branch, 258 F. 2d 757(2d Cir. 1958), cert. denied, 79 S. Ct. 316, 358 U.S. 933, 3 L.Ed.2d 511 (1959); The Chickie, 141 F.2d 80 (3 Cir. 1944). 6. As such, on June 7, 2022, and before SEA WOLF and WBM were scheduled to be deposed, Your Affirmant approached counsel for plaintiff and the co-defendant, WEEKS MARINE, INC., to put them on written notice of the defense and seek their consent to the amendment. As of the time of this writing, no response has been received. 7. Given its statutory basis, courts should refuse to grant a vessel owner leave to amend his answer to raise a limitation of liability defense “only under the most exigent circumstances.” Baham v. Atlantic, Gulf and Pac. Co., 333 F. Supp. 680, 681 (E.D. Pa. 1971); see also, Sana v. Hawaiian Cruises, Ltd, 181 F.3d 1041, 1047 (9th Cir. 1999) (“Like the other circuits that have examined this issue, we conclude that the time limitation in §185 does not apply in these circumstances. The court did not err in allowing Hawaiian Cruises to amend its answer.”). 8. Moreover, it is difficult to imagine how plaintiff might be prejudiced, as discovery is still ongoing. 9. The defense appears as the “Eighteenth” Affirmative Defense, at Paragraph “Forty-Second”, of the proposed amended pleading. See, Exhibit C. No other substantive changes are 4 4 of 5 FILED: NEW YORK COUNTY CLERK 06/09/2022 05:28 PM INDEX NO. 154000/2018 NYSCEF DOC. NO. 167 RECEIVED NYSCEF: 06/09/2022 included. Compare Exhibit B with Exhibit C. WHEREFORE, SEA WOLF and WBM urge the Court to grant their motion for leave to amend their Answer and award to SEA WOLF and WBM such other and further relief the Court may deem just and proper. Dated: New York, New York June 9, 2022 Respectfully submitted, By: s/ Garth S. Wolfson ________ Garth S. Wolfson MAHONEY & KEANE, LLP Attorneys for Defendants SEA WOLF MARINE TRANSPORTATION, LLC and WITTICH BROS. MARINE, INC. s/h/a WITTICH BROTHERS MARINE, INC. 40 Worth Street, Suite 602 New York, New York 10013 (212) 385-1422 5 5 of 5