Preview
FILED: NEW YORK COUNTY CLERK 07/26/2022 01:52 PM INDEX NO. 154000/2018
NYSCEF DOC. NO. 172 RECEIVED NYSCEF: 07/26/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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DARRYL NOWAK,
Index No.: 154000/2018
Plaintiff,
-against- AFFIRMATION IN
OPPOSITION TO
MOTION TO
AMEND ANSWER
SEA WOLF MARINE TRANSPORTATION, LLC,
WITTICH BROTHERS MARINE, INC., and
WEEKS MARINE, INC.,
Defendants.
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JOSEPH P. NAPOLI, an attorney licensed to practice before the courts of the State of New
York, affirms the truth of the following under penalties of perjury:
1. I am a partner of the firm NAPOLI SHKOLNIK, PLLC, attorneys for the plaintiff
DARRYL NOWAK in the above entitled case. As such, I am fully familiar with the facts and
circumstances surrounding this case from personal knowledge and through my review of the
litigation file.
2. I submit this affirmation in opposition to the motion of defendants Sea Wolf Marine
Transportation, LLC (the “Tug Company”) and Wittich Brothers Marine, Inc. (“Wittich”) to
amend their answer to assert an additional affirmative defense.
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BACKGROUND
3. As alleged in the Amended Complaint, filed herein in October 2019, 1 in 2017
plaintiff Darryl Nowak (“Plaintiff” or “Nowak”) was employed by defendant Weeks Marine, Inc.
(“Weeks”) as a diving superintendent, overseeing a crew of divers on Barge #2223 moored in the
Hudson River off Manhattan, New York. In September 2017, Nowak sustained serious injuries
when he was being picked up from Barge #2223 at the end of the work day, by a tugboat named
Sea Wolf owned by defendant Tug Company.
4. In particular, on September 12, 2017, the tug Sea Wolf pulled alongside Barge
#2223 but failed to tie or secure itself to the barge. To board the Sea Wolf, Plaintiff had to step
upon tires loosely hanging from metal shackles on the side of Barge #2223 and used as bumpers.
As Plaintiff prepared to disembark from the barge, the tires were temporarily held firmly in place
by the bow of the tug Sea Wolf pressed up against the tires and barge. However, just as Plaintiff
stepped onto a tire, the Sea Wolf’s engine cut out, causing itto drift away from the barge and
causing Plaintiff to fall between the barge and the tug, sustaining serious injuries.
5. This dangerous disembarkation procedure from Barge #2223 was determined and
instituted by Weeks and the Tug Company and was carried out with Nowak dozens of times before
his September 12, 2017 accident.
6. The Tug Company clearly had knowledge and awareness of this dangerous
disembarkation procedure from Barge #2223 because the Sea Wolf’s captain viewed this
procedure each time from the tug’s nearby wheelhouse, and a Sea Wolf deckhand was always
present to assist Nowak in disembarking.
1
The original complaint was filed on May 1, 2018, more than four years ago.
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THE PROCEDURAL AND SUBSTANTIVE
REQUIREMENTS FOR LEAVE TO AMEND
7. The procedural requirements for leave to amend a pleading are well settled. As
explained in Johnson v. Montefiore Med. Ctr., 2020 N.Y. Slip Op 30645(U) (Sup. Ct. Bronx Co.
2020):
The First Department has held that "[w]here there is `extended delay in moving to amend,
an affidavit of reasonable excuse for the delay in making the motion and an affidavit of
merit should be submitted in support of the motion.'" (id.). Thus, the purpose of an affidavit
of merit is two-fold: 1) to show excuse for the delay or a lack of prejudice to the non-
moving party; and 2) to show that the proposed amendment has merit.
(citing Cherebin v. Empress Ambulance Service, Inc., 43 A.D.3d 364, 365 (1st Dep’t 2007); accord
Perricone v. City of New York, 96 A.D.2d 531, 533 (2d Dep’t 1983), aff’d 62 N.Y.2d 661 ( ). In
addition, as explained in E & B Giftware LLC v. Mauer, 2016 NY Slip Op. 31569 (U) (Sup. Ct.
N.Y.Co. 2016):
CPLR 3025(b) requires a motion to amend "be accompanied by the proposed amended or
supplemental pleading clearly showing the changes or additions to be made, to the
pleading."
8. Leave to amend should also be denied where the opposing party will be prejudiced,
meaning that this party “has been hindered in the preparation of his case or has been prevented
from taking some measure in support of his position” Loomis v. Civetta Corinno Constr. Corp.,
54 N.Y.2d 18, 21 (1981).
9. Regarding the substantive requirements for leave to amend, it is also well settled
that "[a] proposed amendment that cannot survive a motion to dismiss should not be permitted."
Scott v Bell Atl. Corp., 282 AD2d 180, 185 (1st Dept 2001). Accord Glenn Partition, Inc. v.
Trustees of Columbia Univ., 169 A.D.2d 488 (1st Dep’t 1991):
Although CPLR 3025 (b) provides that leave to amend a complaint shall be freely granted
. . . this court has held that in determining whether to grant leave to amend the court must
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examine the underlying merits of the causes of action asserted therein, since to do otherwise
would constitute a waste of judicial resources.
Id. 489 (citations omitted).
DEFENDANTS HAVE FAILED TO COMPLY WITH THE
PROCEDURAL REQUIREMENTS TO AMEND
10. As a threshold matter, defendants’ motion is procedurally defective in that it fails
to include: (i) an affidavit of reasonable excuse for the four plus years’ delay in moving to amend
and (ii) an affidavit of merit regarding the additional affirmative defense. In addition, the proposed
amended answer attached to defendants’ moving affidavit as Exhibit C fails to highlight the
proposed changes or additions.
11. These glaring procedural defects alone warrant denial of defendants’ motion for
leave to amend. As discussed below, Plaintiff will also be severely prejudiced by this eleventh
hour proposed amendment of defendants’ answer, constituting a further ground to deny their
motion.
DEFENDANTS’ PROPOSED AMENDMENT
CLEARLY LACKS MERIT
12. Defendants seek to amend their answer to add a limitation-of-liability defense based
on the federal Limitation of Liability Act, 46 U.S.C. § 30501 et seq. (the “Act”). Where it applies,
the Act permits the owner of a vessel to cap its liability for injuries or damages in an amount equal
to the value of the vessel and any pending freight. Critically, however, “[a] court may not limit
the liability of a ship owner who had privity or knowledge of the specific negligent act causing the
loss.” Matter of Adventure Bound Sports, Inc., 837 F. Supp. 1244, 1254 (S.D. Ga. 1993). Just as
importantly, “a court may impute to a corporate owner the privity or knowledge ‘of an executive
officer, manager or superintendent whose scope of authority includes supervision over the phase
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of the business out of which the loss or injury occurred.’” Id. at 1255 (quoting Coryell v. Phipps,
317 U.S. 406, 410 (1943); accord Matter of Palmer Johnson Savannah, Inc., 1 F. Supp.2d 1377,
1384 (S.D. Ga. 1997).
13. As explained above, the Sea Wolf’s Captain and crew not only condoned but
directed and supervised Plaintiff’s extremely risky transfer procedure when disembarking from the
barge and boarding the tug. Under settled case law, the captain’s and crews’ knowledge is imputed
to defendants, as the corporate owners of the Sea Wolf, and this knowledge precludes any
limitation of liability under the Act.
14. Because the proposed amendment is thus devoid of merit and subject to a motion
to dismiss, defendants’ motion for leave to amend should therefore be denied.
15. Plaintiff will also be severely prejudiced by this eleventh hour proposed amendment
because a defense under the Act would inject entirely new issues into this case, including
defendants’ privity or knowledge of the Sea Wolf’s crews’ negligence in transferring Plaintiff from
barge to tug. Plaintiff will be prejudiced in litigating these new issues because discovery is nearly
complete, including document productions and the deposition of the Tug Company (already held
on June 9, 2022) and of Plaintiff (already held on May 27, 2022).
WHEREFORE, for the reasons set forth herein, defendants’ motion for leave to amend
their answer should be denied in all respects.
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NYSCEF DOC. NO. 172 RECEIVED NYSCEF: 07/26/2022
Dated: New York, New York
June 23, 2022
Yours, etc.,
NAPOLI SHKOLNIK, PLLC
___________________________
By: Joseph P. Napoli, Esq.
Attorneys for Plaintiff
360 Lexington Avenue – 11th Floor
New York, New York 10017-6502
(212) 397-1000
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Preview
FILED: NEW YORK COUNTY CLERK 07/26/2022 01:52 PM INDEX NO. 154000/2018 NYSCEF DOC. NO. 172 RECEIVED NYSCEF: 07/26/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------------------------------------------------------------------X DARRYL NOWAK, Index No.: 154000/2018 Plaintiff, -against- AFFIRMATION IN OPPOSITION TO MOTION TO AMEND ANSWER SEA WOLF MARINE TRANSPORTATION, LLC, WITTICH BROTHERS MARINE, INC., and WEEKS MARINE, INC., Defendants. -------------------------------------------------------------------X JOSEPH P. NAPOLI, an attorney licensed to practice before the courts of the State of New York, affirms the truth of the following under penalties of perjury: 1. I am a partner of the firm NAPOLI SHKOLNIK, PLLC, attorneys for the plaintiff DARRYL NOWAK in the above entitled case. As such, I am fully familiar with the facts and circumstances surrounding this case from personal knowledge and through my review of the litigation file. 2. I submit this affirmation in opposition to the motion of defendants Sea Wolf Marine Transportation, LLC (the “Tug Company”) and Wittich Brothers Marine, Inc. (“Wittich”) to amend their answer to assert an additional affirmative defense. 1 of 6 FILED: NEW YORK COUNTY CLERK 07/26/2022 01:52 PM INDEX NO. 154000/2018 NYSCEF DOC. NO. 172 RECEIVED NYSCEF: 07/26/2022 BACKGROUND 3. As alleged in the Amended Complaint, filed herein in October 2019, 1 in 2017 plaintiff Darryl Nowak (“Plaintiff” or “Nowak”) was employed by defendant Weeks Marine, Inc. (“Weeks”) as a diving superintendent, overseeing a crew of divers on Barge #2223 moored in the Hudson River off Manhattan, New York. In September 2017, Nowak sustained serious injuries when he was being picked up from Barge #2223 at the end of the work day, by a tugboat named Sea Wolf owned by defendant Tug Company. 4. In particular, on September 12, 2017, the tug Sea Wolf pulled alongside Barge #2223 but failed to tie or secure itself to the barge. To board the Sea Wolf, Plaintiff had to step upon tires loosely hanging from metal shackles on the side of Barge #2223 and used as bumpers. As Plaintiff prepared to disembark from the barge, the tires were temporarily held firmly in place by the bow of the tug Sea Wolf pressed up against the tires and barge. However, just as Plaintiff stepped onto a tire, the Sea Wolf’s engine cut out, causing itto drift away from the barge and causing Plaintiff to fall between the barge and the tug, sustaining serious injuries. 5. This dangerous disembarkation procedure from Barge #2223 was determined and instituted by Weeks and the Tug Company and was carried out with Nowak dozens of times before his September 12, 2017 accident. 6. The Tug Company clearly had knowledge and awareness of this dangerous disembarkation procedure from Barge #2223 because the Sea Wolf’s captain viewed this procedure each time from the tug’s nearby wheelhouse, and a Sea Wolf deckhand was always present to assist Nowak in disembarking. 1 The original complaint was filed on May 1, 2018, more than four years ago. 2 of 6 FILED: NEW YORK COUNTY CLERK 07/26/2022 01:52 PM INDEX NO. 154000/2018 NYSCEF DOC. NO. 172 RECEIVED NYSCEF: 07/26/2022 THE PROCEDURAL AND SUBSTANTIVE REQUIREMENTS FOR LEAVE TO AMEND 7. The procedural requirements for leave to amend a pleading are well settled. As explained in Johnson v. Montefiore Med. Ctr., 2020 N.Y. Slip Op 30645(U) (Sup. Ct. Bronx Co. 2020): The First Department has held that "[w]here there is `extended delay in moving to amend, an affidavit of reasonable excuse for the delay in making the motion and an affidavit of merit should be submitted in support of the motion.'" (id.). Thus, the purpose of an affidavit of merit is two-fold: 1) to show excuse for the delay or a lack of prejudice to the non- moving party; and 2) to show that the proposed amendment has merit. (citing Cherebin v. Empress Ambulance Service, Inc., 43 A.D.3d 364, 365 (1st Dep’t 2007); accord Perricone v. City of New York, 96 A.D.2d 531, 533 (2d Dep’t 1983), aff’d 62 N.Y.2d 661 ( ). In addition, as explained in E & B Giftware LLC v. Mauer, 2016 NY Slip Op. 31569 (U) (Sup. Ct. N.Y.Co. 2016): CPLR 3025(b) requires a motion to amend "be accompanied by the proposed amended or supplemental pleading clearly showing the changes or additions to be made, to the pleading." 8. Leave to amend should also be denied where the opposing party will be prejudiced, meaning that this party “has been hindered in the preparation of his case or has been prevented from taking some measure in support of his position” Loomis v. Civetta Corinno Constr. Corp., 54 N.Y.2d 18, 21 (1981). 9. Regarding the substantive requirements for leave to amend, it is also well settled that "[a] proposed amendment that cannot survive a motion to dismiss should not be permitted." Scott v Bell Atl. Corp., 282 AD2d 180, 185 (1st Dept 2001). Accord Glenn Partition, Inc. v. Trustees of Columbia Univ., 169 A.D.2d 488 (1st Dep’t 1991): Although CPLR 3025 (b) provides that leave to amend a complaint shall be freely granted . . . this court has held that in determining whether to grant leave to amend the court must 3 of 6 FILED: NEW YORK COUNTY CLERK 07/26/2022 01:52 PM INDEX NO. 154000/2018 NYSCEF DOC. NO. 172 RECEIVED NYSCEF: 07/26/2022 examine the underlying merits of the causes of action asserted therein, since to do otherwise would constitute a waste of judicial resources. Id. 489 (citations omitted). DEFENDANTS HAVE FAILED TO COMPLY WITH THE PROCEDURAL REQUIREMENTS TO AMEND 10. As a threshold matter, defendants’ motion is procedurally defective in that it fails to include: (i) an affidavit of reasonable excuse for the four plus years’ delay in moving to amend and (ii) an affidavit of merit regarding the additional affirmative defense. In addition, the proposed amended answer attached to defendants’ moving affidavit as Exhibit C fails to highlight the proposed changes or additions. 11. These glaring procedural defects alone warrant denial of defendants’ motion for leave to amend. As discussed below, Plaintiff will also be severely prejudiced by this eleventh hour proposed amendment of defendants’ answer, constituting a further ground to deny their motion. DEFENDANTS’ PROPOSED AMENDMENT CLEARLY LACKS MERIT 12. Defendants seek to amend their answer to add a limitation-of-liability defense based on the federal Limitation of Liability Act, 46 U.S.C. § 30501 et seq. (the “Act”). Where it applies, the Act permits the owner of a vessel to cap its liability for injuries or damages in an amount equal to the value of the vessel and any pending freight. Critically, however, “[a] court may not limit the liability of a ship owner who had privity or knowledge of the specific negligent act causing the loss.” Matter of Adventure Bound Sports, Inc., 837 F. Supp. 1244, 1254 (S.D. Ga. 1993). Just as importantly, “a court may impute to a corporate owner the privity or knowledge ‘of an executive officer, manager or superintendent whose scope of authority includes supervision over the phase 4 of 6 FILED: NEW YORK COUNTY CLERK 07/26/2022 01:52 PM INDEX NO. 154000/2018 NYSCEF DOC. NO. 172 RECEIVED NYSCEF: 07/26/2022 of the business out of which the loss or injury occurred.’” Id. at 1255 (quoting Coryell v. Phipps, 317 U.S. 406, 410 (1943); accord Matter of Palmer Johnson Savannah, Inc., 1 F. Supp.2d 1377, 1384 (S.D. Ga. 1997). 13. As explained above, the Sea Wolf’s Captain and crew not only condoned but directed and supervised Plaintiff’s extremely risky transfer procedure when disembarking from the barge and boarding the tug. Under settled case law, the captain’s and crews’ knowledge is imputed to defendants, as the corporate owners of the Sea Wolf, and this knowledge precludes any limitation of liability under the Act. 14. Because the proposed amendment is thus devoid of merit and subject to a motion to dismiss, defendants’ motion for leave to amend should therefore be denied. 15. Plaintiff will also be severely prejudiced by this eleventh hour proposed amendment because a defense under the Act would inject entirely new issues into this case, including defendants’ privity or knowledge of the Sea Wolf’s crews’ negligence in transferring Plaintiff from barge to tug. Plaintiff will be prejudiced in litigating these new issues because discovery is nearly complete, including document productions and the deposition of the Tug Company (already held on June 9, 2022) and of Plaintiff (already held on May 27, 2022). WHEREFORE, for the reasons set forth herein, defendants’ motion for leave to amend their answer should be denied in all respects. 5 of 6 FILED: NEW YORK COUNTY CLERK 07/26/2022 01:52 PM INDEX NO. 154000/2018 NYSCEF DOC. NO. 172 RECEIVED NYSCEF: 07/26/2022 Dated: New York, New York June 23, 2022 Yours, etc., NAPOLI SHKOLNIK, PLLC ___________________________ By: Joseph P. Napoli, Esq. Attorneys for Plaintiff 360 Lexington Avenue – 11th Floor New York, New York 10017-6502 (212) 397-1000 6 of 6