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United States District Court Eastern District of New York Gladsky v. Frank Scobbo Contractors, Inc.

United States District Court, E.D. New York

August 29, 2017


          For Plaintiff: Law Office of Vincent D. McNamara Tower Square, By: Helen M. Benzie, Esq.

          For Defendants: Law Office of Brian Thomas McCarthy, PLLC.



         Plaintiff John Gladsky d/b/a Gladsky Marine ("Plaintiff" or "Gladsky") commenced this action against Frank Scobbo Contractors, Inc. ("Contractors"), Scobbo Foundation Systems, a Division of Frank Scobbo Contractors, Inc. ("Systems"), Frank Scobbo d/b/a Scobbo Contractors, Inc. ("DBA"), and Frank Scobbo ("Scobbo") (collectively “Defendants”)[1] asserting claims of breach of an oral maritime contract, breach of a maritime bailment, unjust enrichment, breach of an obligation to buy hull and machine insurance, and fraud and misrepresentation. Presently before the Court, is Defendants' motion to dismiss the Amended Complaint ("AC"). For the reasons set forth below, that motion is granted in part and denied in part.


         The following facts are taken from the amended complaint (“AC”) and are presumed true for purposes of this motion.

         Plaintiff owns the barge “Night Moves 11547" (the “Barge”) and the assets of Seacoast Marine Services (“Seacoast”). Defendants are engaged in the construction of land and waterside facilities. (AC ¶¶ 3-9.)

         In July 2013, Contractors, Systems, DBA, and Scobbo (on behalf of himself as well as on behalf of the foregoing entities), and Plaintiff entered into oral maritime agreements (the “Agreements”) whereby Plaintiff chartered the Barge to Defendants. (AC ¶¶ 11-14.) Pursuant to the Agreements, Defendants were responsible (1) for “any and all damages to the barge while it was in [their] care, custody, control and use;” (2) to make payments of $4, 000 per month of charter, and (3) insure the Barge and Plaintiff against “all liabilities with a limit of $1 [million] per accident or occurrence and [for] physical damage to the Barge up to the amount of $200, 000" during the period of the charter; and (4) to return the Barge in good condition. (Id. ¶¶ 11-15.)

         Defendants had sole use, custody and control of the Barge beginning on July 12, 2013. “Scobbo” provided a “marine protection and indemnity and hull and machinery insurance certificate[] dated July 12, 2103 listing [Contractors] as primary insured and Seacoast Marine Service, Inc. and [the Barge] as additional insured[s] and loss payee[s] entitled to notice of cancellation.” (AC ¶¶ 17, 19.) The July 12, 2013 certificate of insurance named the Folan Agency, Ltd. as its producer and indicated that coverage ended on August 14, 2014. (Id. ¶ 19; id. at Ex. A.) Thereafter, Defendants provided a second certificate of liability insurance dated June 15, 2015 with Kearney International, Inc. as its producer, Contractors as the insured and Seacoast as the certificate holder. The second certificate indicated a “Commercial General Liability, Protection & Indemnity, Collision & Towers Liability” insurance and “Hull & Machinery, etc.” insurance both with effective dates of 2/10/2015 to 2/10/2016. (Id. at Ex. A.) It is alleged that no entity entitled Contractors exists in the records of the New York State Department. (Id. ¶¶ 20-21.) “Scobbo paid the monthly charter hire from July 2013 through September 2015 under the Agreement to Gladsky.” (Id. ¶ 23.)

         On or about May 15, 2015, the Barge was being used by “Scobbo” at a dock construction project abutting 80 Bayport Lane, Saddle Rock, New York. The Barge had an excavator on its deck but “Scobbo used no mats to protect the deck of the barge from compression and scoring by the steel treads of the excavator.” (Id. ¶¶ 25-28.) As the tide was going out of the bay that afternoon, “the barge began to list severely to the west and the excavator began to slide.” (Id. ¶ 29.) “Scobbo was alerted to the condition of the barge which was hanging on a broken pile as the tide was receding, ” but “no one came that evening. By the next morning as the tide was going out again, the barge again listed and began to submerge as if it took on water.” (Id. ¶¶ 30-31.) “[S]everal hours afterward a group of people came via water, began to pump water out of the belly of the barge and moved the excavator to the high point of the listing barge and secured it.” (Id. ¶ 32.) This continued through several tide cycles. The group brought a crew to repair a breach in the bottom of the barge and when the tide was high enough, the barge was dislodged from the broken pile and repairs commenced. The barge was later towed out of the bay. (Id. ¶¶ 32-33.) “Scobbo informed Gladsky the barge was under control, continued to use the [Barge] and continued to pay the charter hire through September 2015.” (Id. ¶ 34.)

         “Scobbo” returned the Barge in late October 2015. Gladsky found it was “leaking due to indentations in the bottom hull plates, with slipshod cement repairs to the hull interior, damage to the deck plates and internal supports to the deck. On removal, the mooring spuds were bent.” The damage rendered the Barge unusable. (Id. ¶¶ 35-36.)

         Plaintiff submitted a notice of claim to defendants and the underwriters for the hull damage. The underwriters “declined coverage under the hull and machinery policy claiming that the barge was not insured under the policy until the June 15, 2015 certificate was issued and the Scobbo defendants insured had acknowledged the incident happened before the barge was listed on the policy.” (Id. ¶¶ 37-39.)


         I. Standard - Motion to Dismiss

         In deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a court should “draw all reasonable inferences in Plaintiff[‘s] favor, assume all well-pleaded factual allegations to be true, and determine whether they plausibly give rise to an entitlement to relief.” Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011) (internal quotation marks omitted). The plausibility standard is guided by two principles. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)); accord Harris v. Mills, 572 F.3d 66, 71-72 (2d Cir. 2009).

         First, the principle that a court must accept all allegations as true is inapplicable to legal conclusions. Thus, “threadbare recitals of the elements of a cause of action supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Although “legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Id. at 679. A plaintiff must provide facts sufficient to allow each named defendant to have a fair ...

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