The opinion of the court was delivered by: E. Thomas Boyle United States Magistrate Judge
MEMORANDUM OPINION and ORDER
In December 2004, plaintiff and defendant entered into an oral agreement by which plaintiff agreed to store defendant's vessel, the S/Y CLARITY, in plaintiff's marina in exchange for an agreed upon fee of $1,000 per month.*fn1 (First Am. Compl., ¶¶ 3-4.) Defendant paid this monthly fee from the inception of storage, December 2004, until September 2005, when he ceased making payments.*fn2 (Id., ¶ 5.)
On May 18, 2006, plaintiff filed a petition in the District Court for the County of Nassau seeking to recover the unpaid storage fees for the S/Y CLARITY, stemming from defendant's failure to pay the monthly storage fee after September 2005, as well as an order directing defendant to remove his vessel from plaintiff's marine yard. (Decl. of Owen F. Duffy, dated Mar. 14, 2007 ("Duffy Decl."), ¶ 22 and Ex. 1, annexed thereto.) On June 23, 2006, defendant removed the action to this court, asserting that since the dispute pertains to a maritime contract, the federal court has exclusive jurisdiction. (Id., ¶ 23 and Ex. 2.) Defendant filed an Answer on June 29, 2006 and asserted counter-claims for breach of the maritime contract by plaintiff and breach of workmanlike performance. (Id., ¶ 24 and Ex. 3.) A settlement conference was held before the undersigned on December 11, 2006, but was ultimately unsuccessful.
Defendant attempted to enter plaintiff's marina on several occasions between Christmas 2006 and New Year's Day 2007, presumably for the purpose of gaining access to his vessel. (Id., ¶ 31.) Defendant was denied access to the marina and was informed that it was closed for the holidays. (Id., ¶ 32.) Plaintiff allegedly continued to deny defendant access to the marina, and his vessel, throughout January 2007. (Id., ¶ 33.)
On February 14, 2007, defendant requested clarification from plaintiff as to whether defendant was permitted to enter the marina to work on his vessel. (Id., ¶ 34 and Ex. 9.) According to defendant, a copy of defendant's insurance certificate, listing plaintiff's marina as co-insured, was provided to plaintiff at this time. (Id., ¶ 35 and Ex. 10.) Plaintiff responded to defendant's request for clarification by an email from his attorney, Lars Forsberg, stating as follows: "The Gladsky facility is closed to those who do not provide proper/adequate insurance. In Mr. Sessa's case there is also the outstanding issue of unpaid rent." (Id., ¶ 36 and Ex. 11.) Defendant again asked plaintiff to clarify his position as to defendant's access to the marine yard and was told that he was "not permitted to enter the Gladsky facility." (Id., ¶¶ 37-38 and Ex. 12.) Plaintiff asserts that despite repeated demands, defendant has not provided plaintiff with proof of adequate liability insurance. (Aff. of Lars Forberg ("Forsberg Aff."), dated Apr. 27, 2007, ¶ 11.)
On March 14, 2007, defendant filed a motion seeking the following: (1) a preliminary injunction to allow him to enter the plaintiff's marina and gain access to, and work on, his vessel; and (2) to amend his counter-claim, pursuant to Rule 15 of the Federal Rules of Civil Procedure, to add a claim for wrongful eviction and to seek damages for that claim. Plaintiff filed his opposition to defendant's motion on April 27, 2007. Defendant's motion was referred by Judge Bianco on May 3, 2007 and a preliminary injunction hearing was scheduled for May 11, 2007. By request of the parties, the preliminary injunction hearing was adjourned sine die to allow the parties to attempt to resolve the matter. On May 15, 2007, the parties consented to magistrate judge jurisdiction. See 28 U.S.C. §636(c). By order dated July 12, 2007, after the parties reported that they were unable to settle this action, the preliminary injunction hearing was rescheduled for July 23, 2007.
At the hearing the defendant, Brian Sessa ("Sessa"), testified that Futures Marine, LLC purchased the S/Y "CLARITY" in June 2004. Sessa is the sole owner of the corporation. (Tr. 3.)*fn3 The 80' sailing yacht was purchased in France and brought to the United States with the intent to convert the vessel from a flat-out race boat to a luxury sailing yacht for charter in the Caribbean. (Tr. 2-3.) Sessa intends to sell fractional ownership shares to help pay for the conversion, in addition to doing some of the work himself. (Tr. 8.) No sales have occurred to date. (Tr. 35.)
Sessa made arrangements to haul and store the vessel at the plaintiff's yard in December 2004. (Tr. 5.) Sessa acknowledges that he was responsible for renting a crane to pull CLARITY out and place it in the yard. (Tr. 6,7.) According to Sessa, the monthly storage was not discussed prior to any haul out. Sessa testified that the conversion work was estimated to take three years (Tr. 8.) Sessa stated that he relied on a notice posted at the plaintiff's boat yard for annual winter storage - which was $40.00 a foot for a six-month period (or $533.00 a month). (Tr. 16, 58.) Notwithstanding this, the first check paid to the yard for storage was $400.00 (described as a "good faith payment"), and a week later, on January 21, 2005, he paid $1,000.00. Sessa testified that in March the parties negotiated to a monthly rate of $750.00. (Tr. 18, 19.) According to Exhibit 2, prepared by Sessa, he paid two other $500.00 checks in February 2005 and a check for $2,100.00 in June, followed by a check in July for $750.00 and a check in September for $750.00 - for a total of $6,000.00 through September. No other payments have been made to date. Sessa claims he stopped paying the rent because plaintiff, John Gladsky ("Gladsky"), had not retrieved his keel, which sank when the vessel was hauled out. Although defendant paid no storage from September 2005 on, he continued to have access to the boat until Christmas 2005 when the yard closed for the holidays. (Tr. 23.) This action was commenced in the state court in May 2006 and removed to this court in June of that year. Sessa has been denied access to CLARITY since January 2006.
Sessa's claim of irreparable injury is the delay in the conversion rendering him unable to market the boat. He further maintains that he was denied access to his tools for which he could have employed 60 hours a week for six months at the hourly wage of $60.00. At no time, however, did he request that the plaintiff provide him with his tools. (Tr. 57.) Sessa also claims that the denial of access has resulted in a loss of ten weeks of charter revenue, which he estimates at $20,000.00 per week or $200,000.00 for a six-month period. (Tr. 41.) He acknowledges, however, that even if access were not interrupted, the vessel would not be completed and ready for launch. (Tr. 40.)*fn4 Sessa acknowledges that no work had been commenced on the inside structure prior to December 2006 due to his inability to verify the size and metallurgy of the keel, which was not available and had sunk during the haul-out. (Tr. 54.) The keel on the converted vessel was to slide up and down through a sleeve - enabling the keel to be partially retracted in shallow water. (Tr. 54.) Sessa was unable to state that the water in the stern bulkhead, which he attributes to the denial of access, caused any permanent or substantial damage to the vessel. (Tr. 60.)
John Gladsky testified that he quoted the defendant a figure of $25,000.00 to haul CLARITY out of the water with his crane OVUS I, which is berthed in Brooklyn. (Tr. 67-68.) This was rejected by the defendant as too costly and plaintiff was informed by Sessa that he (Sessa) would make his own arrangements to remove the vessel from the water. During hauling, CLARITY sank prior to be lifted from the water, apparently due to the imbalance caused by the removal of the keel. In addition, the keel sank to the bottom in shallow water just off Gladsky's bulkhead. Plaintiff denies any responsibility for hauling the vessel out or for removal and/or the sinking of the keel. (Tr. 70-71.) Once out of the water and the weight reduced by the removal of the keel, plaintiff testified that he assisted with the yard crane in settling the boat level on the cradle. (Tr. 67-69, 80.) Gladsky testified that he also assisted Sessa in putting a 3" nylon line around the keel, which was then attached to the rope from the crane Sessa had hired, in an effort to raise it from the mud. (Tr. 80-81.) Gladsky testified that he told defendant to try it while the crane he had hired was there but "don't blame me if it doesn't work." (Tr. 81.) This attempt failed however, which failure Sessa attributes to Gladsky.
According to Gladsky, the agreed storage price was $1,000.00 a month for what plaintiff understood to be a two-year period to complete the conversion and re-launch CLARITY. (Tr. 73.) When defendant only paid $500.00 a month for several months, Gladsky stated that the parties agreed to compromise on the $750.00 per month amount. (Tr. 73.) Plaintiff identified the $1,000.00 payment on January 21, 2005 as payment of the $1,000.00 per month which was one month of storage. (Tr. 83.) Plaintiff said he accepted two checks for $500.00 between February and June as "[b]etter than getting nothing at all." (Tr. 84.)
In late 2006 or early 2007 plaintiff custom made a 200 pound lifting plate which two divers attached to CLARITY'S sunken keel, and plaintiff lifted the CLARITY keel from the water with the yard crane. (Tr. 75.) Plaintiff paid the divers $1,900.00 for affixing the plate. (Tr. 82.) The reason plaintiff retrieved the keel was that it was blocking the waterway for a barge that he wanted to bring in. (Tr. 89.) Without being retrieved, the keel would otherwise have been damaged. (Tr. 89.)
Plaintiff denied that the original agreement included permission for the defendant to bring in a container (Tr. 87). The defendant never brought one in or made arrangements to do so. Notwithstanding the absence of any such agreement, plaintiff states that when Sessa later asked to bring one in, he told Sessa where he could put it. (Tr. 88.) Sessa never followed through, however.
Plaintiff testified that around the Christmas holiday 2005 a sign was posted that the yard was closed for the holiday. Later, a second sign was posted that there "would be no admittance without insurance coverage." (Tr. 91.) The second sign was posted due to Sessa working at the yard with "large quantities of flammable liquids and resins" and due to the ...