Upon the foregoing papers, the motion (No. 4087) of defendant the City of New York (hereinafter, the "City") for summary judgment and dismissal of the complaint as against it is denied, as is plaintiffs' (cross) motion (No. 332) for partial summary judgment on the issue of liability.

In this personal injury action, plaintiff Thomas Coffey (hereinafter plaintiff) alleges that on July 5, 2005 he was injured while employed by the New York City Department of Transportation as a shore-side deck hand at the St. George Ferry Terminal on Staten Island. At the time, plaintiff was standing on a crew gangway, which was in the process of being removed from the boat. When the ferry surged from the dock, the gangway allegedly slid off the boat rail and fell onto the pier, causing him serious injury.

According to plaintiff, the accident occurred because the gangway was in an unsafe and unseaworthy condition, i.e., it was not properly connected to the boat. As a result, when the lines tethering the boat were prematurely released and the boat surged away from the pier, the gangway slid off the boat rail and fell. Thus, plaintiff maintains that the accident was caused by, e.g., the City's negligence coupled with the unseaworthiness of the vessel and its crew.

This action was brought, in part, under the Jones Act (46 USC §30104), which confers certain tort remedies to an injured seamanif there is a finding of unseaworthiness. Plaintiffs also assert causes of action for negligence, loss of consortium and alleged violations of various safety statutes which are incorporated into the United States Code and administered by the Coast Guard.

In moving for dismissal of the complaint and for summary judgment, the City maintains that plaintiff is not entitled to the protections of the Jones Act because at the time of the incident, he was not a covered "seaman", e.g., he did not have a connection to a vessel in navigation that was substantial in duration and nature. In support of this proposition, the City relies, inter alia, upon the Federal Jury Instruction 90-2 and the related caselaw (see e.g. Scheuring v Traylor Bros., Inc., 476 F3d 781, 787 [9th Cir. 2007]; Sologub v City of New York, 202 F3d 175 [2d Cir 2000]; Chandris, Inc. v Latsis, 515 US 347, 353 [1995]). In support of plaintiff's non-seaman status, the City has submitted the affidavit of Frank Roda, an employee of the New York City Department of Transportation assigned to the Staten Island Ferry, who compiled and reviewed the relevant "Terminal Time Sheets" and "Form 12 Daily Sheets" for the period from November 23, 2004 ^[FN1] through July 5, 2005. According to Mr. Roda, these logs monitor the arrival and departure of shore-side employees, who are required to "sign in" and "out" daily. Based [*2]upon his interpretation of the data in these DOT personnel records, plaintiff worked a total of 1,105.1 hours between November 23, 2004 and July 5, 2005 which was divided as follows: on 121 occasions (totaling 998.2 hours or 90.3% of the time) plaintiff worked at least a portion of his shift shore-side, while on 22 occasions (totaling 106.9 hours or less than 10% of the time) plaintiff worked at least a portion of his shift on a ferry. In addition, for the eleven days between June 14, 2005 and June 24, 2005, plaintiff was offsite receiving training.

With this established, the City contends that the general rule adopted by the United State Supreme Court precludes an employee from being classified as a Jones Act seaman unless he spends approximately 30% of his time serving on a vessel in navigation(see Chandris, Inc. v Latsis, 515 US 347, supra). Accordingly, based on the City's analysis of DOT personnel records, during the seven-month period preceding the accident in question, plaintiff did not have a sufficient connection to a vessel in navigation to be covered by the Jones Act. The City further argues that in view of plaintiff's failure to establish his status as a seaman, his claim of unseaworthiness is barred as a matter of law. Finally, it is alleged that co-plaintiff Donna Coffey's claim of loss of consortium may not be entertained under the Jones Act, which is construed to permit only direct pecuniary damages.^[FN2]

In opposition to the City's motion and in support of the (cross) motion for, inter alia, partial summary judgment on the issue of liability, plaintiff maintains that he is entitled to seaman status since he was required to "go out on a boat...on a daily basis" to perform the duties of a deck hand. According to plaintiff, his change in position from deck hand to that of a (shore-side) utility deck hand did not alter "his duties... or the amount of time he spent at sea". In support, plaintiff attests that the City's records should show that he was "at sea" 35%-50% of the time, rather than the 10% claimed by the City. In addition, plaintiff claims that there were no uniform written procedures requiring a utility deck hand to "sign in" as a crew member on a vessel, and that the customs adopted by individual captains varied depending on the circumstances.

As for DOT's various personnel records (i.e., time sheets, daily sheets, crew lists and Captain's logs), plaintiff maintains that they do not accurately reflect the amount of time spent working as a utility deck hand at sea. In support, plaintiff has submitted the affidavit of Charles Gmelch, who was a Captain in the Staten Island Ferry System from 1984 to 2002 and well acquainted with its personnel practices. The witness attests that during the time in question, the Staten Island Ferry "did not have a written rule certain that outlined a procedure for a shore-side deck hand to be signed in when...called from shore-side to work on a boat." Accordingly, a stand-by deck hand could be assigned temporarily as a deck hand on a ferry boat without any record being kept of his time at sea. Captain Gmelch further attests that any one or a combination of the City's records would not accurately reflect the true amount of time that a stand-by deck hand had spent at sea as a result of any one or more of the following sources of error in DOT's record-keeping, e.g., (1) insufficient time for the workers to "sign in" on the Daily Sheet kept in the Pilots' [*3]House, (2) Captains' failures to properly fill in their logs, (3) human error and (4) the lack of a specific written procedure. In the Captain's opinion, "relying upon the instant records kept by the City of New York and referenced in their motion papers to determine the amount of time a stand-by utility deck hand was out at sea would lead to an inaccurate conclusion."

In view of all of the above, it is the opinion of this Court that the evidence submitted by the parties in support of their respective summary judgment motions clearly raise triable issues of fact, e.g., as to the status of plaintiff Thomas Coffey as a Jones Act seaman at the time of his injury. Thus, neither party is entitled to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320).

Accordingly, it is

ORDERED, that the motion and the cross motion are denied in their entirety

E N T E R,

Dated: July 27, 2011_/s/_____________________________

Hon. Thomas P. Aliotta

J.S.C.