Schnapp v. Miller's Launch, Inc.

Full title: Wayne Schnapp and JOANNE SCHNAPP, Plaintiffs, v. Miller's Launch, Inc.…

Court: Supreme Court, New York County

Date published: Dec 19, 2014

2014 N.Y. Slip Op. 51943 (N.Y. Sup. Ct. 2014)

Opinion

115059/2008

12-19-2014

Wayne Schnapp and JOANNE SCHNAPP, Plaintiffs, v. Miller's Launch, Inc., Defendants.

APPEARANCES: For Plaintiffs Paul T. Hofmann Esq. Hofmann & Schweitzer 360 West 31st Street, New York, NY 10001 For Defendant Michael E. Stern Esq. Rubin, Fiorella & Friedman LLP 630 3rd Avenue, New York, NY 10017

Lucy Billings, J.

APPEARANCES:

For Plaintiffs

Paul T. Hofmann Esq.

Hofmann & Schweitzer

360 West 31st Street, New York, NY 10001

For Defendant

Michael E. Stern Esq.

Rubin, Fiorella & Friedman LLP

630 3rd Avenue, New York, NY 10017

Lucy Billings, J.

I.BACKGROUND

Plaintiff Wayne Schnapp was injured April 14, 2008, while boarding a vessel owned and operated by defendant Miller's Launch, Inc., and chartered by plaintiff's employer, nonparty Weeks Marine, Inc., to transport workers and equipment to and from job sites. Plaintiff claims defendant's negligence, including its vessel's inadequate equipment and unsafe condition and defendant's inadequate warnings, caused his injury.

Plaintiff was employed by Weeks Marine as a surveyor working on the Spuyten Duyvil Bridge that crosses the Harlem River from the northwestern tip of New York County to the southwestern corner of Bronx County. On April 14, 2008, he was on board defendant's vessel, crewed by a captain provided by defendant under its time charter agreement with Weeks Marine, to unload equipment at a Weeks Marine facility and transport replacement equipment back to a job site. The vessel docked, according to plaintiff's direction, at a pier with a concrete surface approximately four feet above the vessel's deck. The parties do not dispute that the captain docked the vessel by running its engine in reverse to keep its stern flush against the pier.

Plaintiff, who was not involved in the unloading or loading of equipment, disembarked by climbing up to the pier. When reboarding the vessel, he injured his leg by jumping down from the pier onto the deck while reaching forward in an attempt to grab the shoulder of another Weeks Marine employee as an anchor standing on the vessel a few feet in front of plaintiff. Aff. of Sven Van Batavia Ex. F, at 57-60. Plaintiff did not notify the captain when plaintiff was reboarding nor request assistance in reboarding and admits that he decided to jump down to the deck only because he believed he could lean on the worker in front of him for support. Id. at 57, 59.

Plaintiff does not dispute that he was engaged in maritime employment when he was injured, Northeast Marine Terminal Co., Inc. v. Caputo, 432 U.S. 249, 273-74 (1977), as his complaint admits that he collected harbor workers' compensation benefits from Weeks Marine for the injury as an employee covered by the federal Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. §§ 902-903. Defendant moves for summary judgment dismissing the complaint because the undisputed facts establish that defendant's conduct did not amount to negligence under the LHWCA. C.P.L.R. § 3212(b). Defendant insists that plaintiff's claim of the vessel's negligence in failing to provide him a safe means to board or disembark constitutes a claim against the vessel owner for unseaworthiness, barred under LHWCA. 33 U.S.C. § 905(b); Howlett v. Birkdale Shipping Co., S.A., 512 U.S. 92, 96-97 (1994). Defendant maintains that it owed no duty to provide plaintiff a gangway since the vessel was not designed to carry a gangway suitable for all docks at Weeks Marine's facilities and that plaintiff's negligence in jumping down the four feet between the pier and the deck without requesting assistance was the only cause of his injury. In opposition plaintiff claims he was a passenger on defendant's chartered vessel, so that defendant owed him a duty of reasonable care under the circumstances established in Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 630 (1959), instead of the duties applicable to maritime employees under the LHWCA outlined in Scindia Steam Navigation Co., Ltd. v. De Los Santos, 451 U.S. 156, 167, 170, 172, 174-75, 177-78 (1981), and was negligent in failing to provide him a safe means of egress from and access to the vessel.

II.SUMMARY JUDGMENT STANDARDS

Defendant, to obtain summary judgment, must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence eliminating all material issues of fact. C.P.L.R. § 3212(b); Vega v. Restani Constr. Corp., 18 NY3d 499, 503 (2012); Smalls v. AJI Indus., Inc., 10 NY3d 733, 735 (2008); JMD Holding Corp. v. Congress Fin. Corp., 4 NY3d 373, 384 (2005); Giuffrida v. Citibank Corp., 100 NY2d 72, 81 (2003). Only if defendant satisfies this standard, does the burden shift to plaintiff to rebut that prima facie showing, by producing evidence, in admissible form, sufficient to require a trial of material factual issues. Morales v. D & A Food Serv., 10 NY3d 911, 913 (2008); Hyman v. Queens County Bancorp, Inc., 3 NY3d 743, 744 (2004). If defendant fails to meet its initial burden, the court must deny summary judgment despite any insufficiency in the opposition. Vega v. Restani Constr. Corp., 18 NY3d at 503; JMD Holding Corp. v. Congress Fin. Corp, 4 NY3d at 384; Seleznyov v. New York City Tr. Auth., 113 AD3d 497, 498 (1st Dep't 2014); Scafe v. Schindler El. Corp., 111 AD3d 556, 557 (1st Dep't 2013). If upon the defendant's prima facie showing, however, plaintiff fails to raise material factual issues, the court must grant defendant summary judgment. Vega v. Restani Constr. Corp., 18 NY3d at 503; Morales v. D & A Food Serv., 10 NY3d at 913; Romero v. Morrisania Towers Hous. Co. Ltd. Partnership, 91 AD3d 507, 508 (1st Dep't 2012). In evaluating the evidence for purposes of defendant's motion, the court construes the evidence in the light most favorable to plaintiff. Vega v. Restani Constr. Corp., 18 NY3d at 503; Cahill v. Triborough Bridge & Tunnel Auth., 4 NY3d 35, 37 (2004).

III.THE VESSEL'S DUTY OF CARE

A 1972 amendment to the LHWCA abolished a vessel's absolute liability for harbor workers' injury, regardless of its fault, based on a warranty of a seaworthy vessel, but allows harbor workers injured while engaging in maritime employment to recover from vessel owners for their negligence. 33 U.S.C. § 905(b); Scindia Steam Navigation Co., Ltd. v. De Los Santos, 451 U.S. at 165. The LHWCA neither specifies what acts or omissions constitute negligence by a vessel owner, nor defines the scope of a vessel owner's duty to qualified maritime employees, instead leaving those questions to be resolved by applying principles of torts law through litigation. Howlett v. Birkdale Shipping Co., S.A., 512 U.S. at 97; Scindia Steam Navigation Co., Ltd. v. De Los Santos, 451 U.S. at 165-66. In response, the United States Supreme Court has outlined three categories of care that vessel owners owe. (1) The turnover duty requires a vessel owner to turn over its vessel and the vessel's equipment in a condition that allows an expert and experienced stevedore, exercising reasonable care, to carry out cargo operations safely. (2) Once a stevedoring operation has begun, the active control duty requires a vessel owner, itself and through its employees, to exercise reasonable care to prevent injuries to the stevedore's harbor worker employees where the vessel owner maintains active control. (3) If, however, the vessel owner or its employee knows of a hazard in an area under the stevedore's control, the duty to intervene requires the vessel to take corrective actions. Scindia Steam Navigation Co., Ltd. v. De Los Santos, 451 U.S. at 167, 170, 172, 174-75, 177-78. See Howlett v. Birkdale Shipping Co., S.A., 512 U.S. at 98.

Despite plaintiff's insistence to the contrary, these three types of duties and the duty of reasonable care under the circumstances espoused in Kermarec v. Compagnie Generale Transatlantique, 358 U.S. at 630, are not mutually exclusive. As the Supreme Court specified, these three types of duties are merely refinements of the duty of reasonable care under the circumstances applicable to maritime employees' claims under the LHWCA. Scindia Steam Navigation Co., Ltd. v. De Los Santos, 451 U.S. at 163 n.10. The turnover duty requires the vessel owner to exercise reasonable care under the circumstances so as to turn over the vessel and its equipment to the stevedore in a condition that allows safe operations. Howlett v. Birkdale Shipping Co., S.A., 512 U.S. at 98; Scindia Steam Navigation Co., Ltd. v. De Los Santos, 451 U.S. at 167. As set forth above, the active control duty requires reasonable care to prevent injuries. The duty to intervene, if anything, imposes a higher standard, requiring the vessel to take corrective actions even where it does not maintain active control, in areas under a stevedore's control, but still to take reasonable action under the specific circumstances where the vessel knows of a hazard.

IV.PLAINTIFF'S STATUS

Plaintiff's own admission that he was an employee engaged in maritime employment within the LHWCA undermines his claimed status as a passenger on the vessel. The LHWCA covers employees of an employer that employs persons engaged in maritime employment on navigable waters, 33 U.S.C. § 902(4), who are injured on navigable waters in the course of that employment. Chesapeake & Ohio Ry. Co. v. Schwalb, 493 U.S. 40, 45 (1989); Director, Off. of Workers' Comp. Programs, U.S. Dept. of Labor v. Perini N. River Assocs., 459 U.S. 297, 324 (1983). Eligible employees extend beyond the longshoremen or harbor workers who physically handle cargo to include workers engaged in activities integral and essential to the overall loading and unloading process. Chesapeake & Ohio Ry. Co. v. Schwalb, 493 U.S. at 47. Plaintiff does not dispute that his employer Weeks Marine was an employer operating over navigable waters as defined by 33 U.S.C. § 902(4), Van Batavia Aff. Ex. F, at 18, or that he was injured in the course of his employment. Aff. of Paul T. Hofmann Ex. 7 ¶¶ 1, 13-16, 19. Nor does plaintiff dispute that he sustained his injury while boarding defendant's vessel from a pier over navigable waters. 33 U.S.C. § 902(4). See Director, Off. of Workers' Comp. Programs, U.S. Dept. of Labor v. Perini N. River Assocs., 459 U.S. at 313-14.

Plaintiff used defendant's vessel not only to access job sites, Van Batavia Aff. Ex. F, at 27, in carrying out his job as a surveyor, but also to pick up materials at his employer's facility, as he also performed this and any other duties his employer assigned to him. Id. at 23-24. On the day of his injury, plaintiff was responsible for the transportation and exchange of equipment between the Spuyten Duyvil Bridge job site and his employer's facility at Greenville, New Jersey. Id. at 51, 53-54. Although plaintiff did not physically unload or load the equipment, he was more than a passenger on defendant's vessel, as his supervision of the equipment's transportation was essential to its unloading and loading, qualifying him under the LHWCA's coverage. Chesapeake & Ohio Ry. Co. v. Schwalb, 493 U.S. at 47.

By virtue of plaintiff's own election to pursue this action under 33 U.S.C. § 905(b), classifying himself as an employee engaged in maritime employment to collect workers' compensation benefits from his employer under the LHWCA, 33 U.S.C. § 904; Hofmann Aff. Ex. 7 ¶ 30, the standards applicable to maritime employees' claims against vessel owners under 33 U.S.C. § 905(b) govern his claims against defendant. Those LHWCA standards incorporate the duty of reasonable care under the circumstances, but the circumstances to which that duty or any heightened duty apply are delineated into the three categories set forth above. See O'Hara v. Weeks Marine, Inc., 294 F.3d 55, 64-65 (2d Cir. 2002); Gravatt v. City of New York, 226 F.3d 108, 122 (2d Cir. 2000); Hudson v. Schlumberger Tech. Corp., 452 Fed. Appx. 528, 533 (5th Cir. 2011).

While adopted in the context of stevedores or longshoremen loading or unloading vessels, the three categories of duties are applied to non-longshoring harbor workers and provide the framework for analyzing and determining a vessel's duty of care to any maritime employee claiming against a vessel owner under 33 U.S.C. § 905(b). See Scheuring v. Taylor Bros., Inc., 476 F.3d 781, 789 n.6 (9th Cir. 2007); Gravatt v. City of New York, 226 F.3d at 122; Morehead v. Atkinson-Kiewit, J/V, 97 F.3d 603, 613 (1st Cir. 1996). As discussed above, although plaintiff was not a longshoreman and did not sustain his injury while physically unloading or loading cargo, he was a maritime employee covered under the LHWCA, whose claims fall within its framework of analysis, as set out by the Supreme Court and applied by the federal courts, for determining the duty of care defendant owed plaintiff.

V.DEFENDANT'S DUTY TO PROVIDE A SAFE MEANS OF ACCESS TO THE VESSEL

After docking its vessel, defendant was required to exercise reasonable care under the circumstances to turn over the vessel and its equipment in a reasonably safe condition to plaintiff's stevedore employer and to warn of latent hazards that were or ought to have been known to the vessel and were neither obvious to nor to be expected by a competent stevedore. Howlett v. Birkdale Shipping Co., S.A., 512 U.S. at 98-99. Reasonable care under the circumstances requires that the vessel and its equipment be turned over in a condition that enables an experienced stevedore, mindful of the expected risks arising from the vessel's use or the longshoring activity, to carry out cargo operations with reasonable safety. Scindia Steam Navigation Co., Ltd. v. De Los Santos, 451 U.S. at 167. The vessel owner ordinarily is entitled to rely on the stevedore's expertise to avoid hazards and to provide its harbor workers reasonable safeguards in its workers' handling of equipment and working conditions. 33 U.S.C. § 941; Scindia Steam Navigation Co., Ltd. v. De Los Santos, 451 U.S. at 170, 172.

Defendant's insistence that its failure to provide plaintiff a means to board the vessel constitutes a claim of unseaworthiness preempted by the LHWCA misrepresents the statutes' intent and plain terms. The 1972 amendment only prohibited a harbor worker's recovery from the vessel under the warranty of seaworthiness on the ground that an unsafe condition alone, even if caused by the stevedore, established the vessel's liability. Scindia Steam Navigation Co., Ltd. v. De Los Santos, 451 U.S. at 165-66. Abolishing the vessel's absolute liability, which required no evidence of the vessel's fault, shifted the costs of unsafe conditions to the stevedore employer under circumstances where it was better able to prevent its employees' injury. Howlett v. Birkdale Shipping Co., S.A., 512 U.S. at 98. Even if, as defendant contends, a gangway is considered the vessel's appurtenance relating to its seaworthiness, but see Sarauw v. Oceanic Navigation Corp., 655 F.2d 526, 528 (3d Cir. 1981); Reyes v. Marine Enterprise Inc., 494 F.2d 866, 870 (1st Cir. 1974), plaintiff does not claim that the absence of a gangway renders defendant absolutely liable regardless of fault. Plaintiff claims simply that defendant owed a duty to provide safe access, so that defendant's failure to provide any means of safe access from a pier at least four feet higher than the vessel's deck, Hofmann Aff. Ex. 7 ¶ 27, via suitable equipment or assistance from the vessel's crew, constitutes negligence.

Although plaintiff may not recover from defendant for Weeks Marine's failure to provide him a safe work environment, Weeks' Marine's responsibility does not relieve defendant of its own duty to turn over it vessel and equipment in a reasonably safe condition. 33 U.S.C. § 905(b) specifically allows recovery for a vessel's own negligence because "the vessel would still be required to exercise the same care as a land-based person in providing a safe place to work." Scindia Steam Navigation Co., Ltd. v. De Los Santos, 451 U.S. at 166. As workers must access a vessel to load, unload, or transport cargo, the vessel's duty of reasonable care under those circumstances to provide a safe place to work includes providing a safe means of access as a part of its turnover duty. Scheuring v. Taylor Bros., Inc., 476 F.3d at 790; Gay v. Barge 266, 915 F.2d 1007, 1012 (5th Cir. 1990); Sarauw v. Oceanic Navigation Corp., 655 F.2d at 528.

The parties do not dispute that the distance of approximately four feet between the pier and the deck of defendant's vessel was open and obvious, so that both the captain and plaintiff, when he elected to jump down to the deck, were aware of the height difference. Van Batavia Aff. Ex. I, at 35; Hofmann Aff. Ex. 7 ¶ 27. Thus, since this condition was not a latent hazard in accessing the vessel, defendant owed no duty to warn of the condition. Because the turnover duty requires the vessel owner only to turn over a vessel after docking in a condition that reasonably enables a skilled stevedore to conduct cargo operations safely, Scindia Steam Navigation Co., Ltd. v. De Los Santos, 451 U.S. at 170, a vessel is not liable for an injury from an obvious hazard based on a breach of the turnover duty. Kirksey v. Tonghai Maritime, 535 F.3d 388, 394 (5th Cir. 2008); Morehead v. Atkinson-Kiewit, J/V, 97 F.3d at 609; Kirsch v. Plovidba, 971 F.2d 1026, 1029 (3d Cir. 1992). This exemption of vessel owners from liability for injuries that a competent stevedore is in a position to prevent derives from the statutory purpose of the 1972 amendment to the LHWCA, to shift more responsibility for compensating eligible maritime employees to the stevedore where it is better positioned to prevent injuries. Howlett v. Birkdale Shipping Co., S.A., 512 U.S. at 91. An exemption from liability for an obvious condition upon the vessel's turnover under 33 U.S.C. § 905(b) simply effectuates the vessel's right to expect the stevedore to ensure the safety of the stevedore's cargo operations, id. at 101, and adheres to Congress' intent to shift statutory liability to the stevedore employers where they are positioned to ensure their employees' safety. Id. at 91.

Liability still may be imposed, however, if the obvious hazard results from the vessel's defective equipment or its negligence, and requiring the stevedore to avoid or remedy the hazard to conduct cargo operations would be unduly impractical or time consuming. Kirksey v. Tonghai Maritime, 535 F.3d at 396; Morehead v. Atkinson-Kiewit, J/V, 97 F.3d at 609; Kirsch v. Plovidba, 971 F.2d at 1031. See Bunn v. Oldendorff Carriers DmbH & Co. KG, 723 F.3d 454, 465 (4th Cir. 2013). Plaintiff explains that he did not ask for assistance to access the vessel simply because none already had been provided, so he assumed none would be. Hofmann Aff. Ex. 7 ¶ 28; Van Batavia Aff. Ex. F, at 44-45. He admits that the distance of four feet between the pier and the vessel's deck below was not unusual, Van Batavia Aff. Ex. F, at 53, and all the previous times he had boarded defendant's vessel at Greenville he had jumped down from the pier. Id. at 58. He further admits that, even though Weeks Marine kept gangways or ladders available for his use at its facility where defendant's vessel docked, he never requested any form of assistance from any source to board the vessel, and he had no intention to make such a request.

The record reveals no evidence that plaintiff's means to reboard the vessel was limited to jumping down onto the deck or that requesting a safer alternative to board would have been unduly impractical or time consuming. See Treadway v. Societe Anonyme Louis-Dreyfus, 894 F.2d 161, 167 (5th Cir. 1990). Nor does plaintiff present any evidence that the distance between the pier and the deck was a condition that an experienced stevedore would not expect to encounter or that such a condition would prevent the stevedore from carrying out its cargo operations with reasonable safety. Plaintiff's lack of direct physical involvement with the unloading and loading of cargo does not prevent the application of these factors to his circumstances as a maritime employee under the LHWCA, rather than a passenger totally unaware of the conditions and risks of maritime employment. Based on the open, obvious distance down from the pier to the deck, defendant was entitled to rely on plaintiff's experience working at his employer's facility, his familiarity with the conditions there and the process of boarding from the pier to the vessel, and hence his reasonable steps to avoid or remedy such a hazard. Howlett v. Birkdale Shipping Co., S.A., 512 U.S. at 99-100; Scindia Steam Navigation Co., Ltd. v. De Los Santos, 451 U.S. at 167-68. Therefore defendant is not liable for plaintiff's injury from this obvious condition based on a breach of defendant's turnover duty.

VI.DEFENDANT'S DUTY TO INTERVENE

Although the captain kept the vessel in place where plaintiff chose to dock the vessel, the vessel was uninvolved in choosing that location, in the methods and operations of the unloading and loading process, and in plaintiff's disembarking and reboarding. Therefore the active control duty is inapplicable. Howlett v. Birkdale Shipping Co., S.A., 512 U.S. at 98. See O'Hara v. Weeks Marine, Inc., 294 F.3d at 66-67; Sobrino-Barrera v. Anderson Shipping Co., Ltd., 495 Fed. Appx. 430, 434 (5th Cir. 2012).

Defendant's duty to intervene and take corrective actions after turning over the vessel would apply only if defendant knew or ought to have known of a hazardous condition presenting an unreasonable risk of harm that the stevedore did not correct or that plaintiff was disregarding. Scindia Steam Navigation Co., Ltd. v. De Los Santos, 451 U.S. at 175-76; Howlett v. Birkdale Shipping Co., S.A., 512 U.S. at 98; Hudson v. Schlumberger Tech. Corp., 452 Fed. Appx. at 535-36; Dow v. Oldendorff Carriers GMBH & Co., 387 Fed. Appx. 504, 507-508 (5th Cir. 2010). Therefore defendant's breach of that duty hinges on whether the distance of four feet from the pier down to the deck of the vessel was unreasonably dangerous, whether defendant reasonably relied on plaintiff's employer or plaintiff himself to remedy the condition, and whether defendant was aware of plaintiff reboarding by imprudently jumping down to the deck.

Whether the distance between the pier and the vessel's deck posed an unreasonable risk of harm under the circumstances is a question for the trier of facts. See Martinez v. Korean Shipping Corp., Ltd., 903 F.2d 606, 611 (9th Cir. 1996). Nevertheless, the record reveals no evidence that the vessel's captain knew that plaintiff's employer had not provided a gangway or any assistive device or that plaintiff was choosing to use his co-worker as a anchor while jumping down to the deck. Although the captain was aware of the distance between the pier and the deck of the vessel, he specifically denied any knowledge of how the unloading or loading operations were conducted or of plaintiff's means of access between the pier and vessel. Van Batavia Aff. Ex. I, at 35-36. Even if plaintiff notified the captain when plaintiff disembarked that he would return, no evidence indicates that the captain was aware when plaintiff was reboarding the vessel. Van Batavia Aff. Ex. F, at 56-57.

The opinion by plaintiff's expert that defendant reasonably ought to have anticipated the hazard in disembarking and embarking at Weeks Marine's facility and known the risks of jumping down approximately four feet, Hofmann Aff. Ex. 4, at 19, is unsupported by the evidence and thus speculative. Park v. Kovachevich, 116 AD3d 182, 191 (1st Dep't 2014); Kalish v. HEI Hospitality, LLC, 114 AD3d 444, 446 (1st Dep't 2014). The record shows no evidence that defendant was obligated under any contract or custom to supervise the disembarking or embarking and to correct hazards once the vessel was docked for Weeks Marine to begin its operations. Scindia Steam Navigation Co., Ltd. v. De Los Santos, 451 U.S. at 172. The applicable law imposes no such obligation, as analyzed above, and on which the expert is neither qualified nor permitted to offer an opinion. "Whether a defendant . . . owes a plaintiff a duty of care is a question for the court" and not a subject for an expert opinion. Burtman v. Brown, 97 AD3d 156, 161 (1st Dep't 2012). See Buchholz v. Trump 767 Fifth, 5 NY3d 1, 7 (2005); Lopez v. Chan, 102 AD3d 625, 626 (1st Dep't 2013); Reyes v. Morton Williams Associated Supermarkets, Inc., 50 AD3d 496, 497-98 (1st Dep't 2008); Dallas-Stephenson v. Waisman, 39 AD3d 303, 307 (1st Dep't 2007). Nor has plaintiff raised any factual issue regarding his employer's or his own prior conduct that would impute knowledge to the vessel that Weeks Marine would not correct any hazard in embarking from Weeks Marine's facility or that plaintiff would disregard such a risk. Absent evidence controverting defendant's prima facie showing that the duty to intervene was not triggered, no material factual issue precludes the conclusion that defendant did not breach this duty either. Vega v. Restani Constr. Corp., 18 NY3d at 503; Morales v. D & A Food Serv., 10 NY3d at 913; Romero v. Morrisania Towers Hous. Co. Ltd. Partnership, 91 AD3d at 508.

VII.DISPOSITION

For the all the reasons explained above, the court grants defendant's motion for summary judgment dismissing plaintiff Wayne Schnapp's claim of negligence under 33 U.S.C. § 905(b). C.P.L.R. § 3212(b). Since his wife, plaintiff Joanne Schnapp, claims loss of his services, society, and consortium due to his injuries caused by defendant's negligence, the court also grants defendant summary judgment dismissing her derivative claim. Id.

DATED: December 19, 2014

_____________________________

LUCY BILLINGS, J.S.C.