55 A.D.2d 1027 | N.Y. App. Div. | 1977
Order and judgment unanimously affirmed, with costs, to defendants Lyon. Memorandum: At about noon on an early November day in 1973 a 28-foot disabled cabin cruiser with a hole through its hull near the water line was tied to a marina dock on Lake Chautauqua. The dock projected out into the lake and was exposed to the wind and waves. Later that same night a storm came up, water filled the boat and caused it partially to submerge. In the suit commenced by the boat’s owner for damages, Special Term granted summary judgment to the defendant, Edgewater Marine owners, dismissing the plaintiff’s complaint against them. The facts adduced at an examination before trial reveal that plaintiffs disabled 28-foot Owens Cruiser had been towed on that November, 1973 day from a dock of defendant Ashville Marina on Lake Chautauqua to the dock of defendant Edgewater Marine. The transmission had been removed from the cruiser, the drive shaft was loose and the exhaust pipe was not hooked up to the engine. This condition resulted in the existence of an unstoppered opening through the hull of the craft near its water line. The Edgewater Marine is more exposed to weather than is the Ashville Marina. The cruiser was delivered and tied up to the dock and secured by four lines — two on the bow and two on the stern at lunchtime by an employee of the Ashville Marina. No one at Edgewater was advised of the cruiser’s condition or that it had been left there. The only facts adduced on this issue are that about a month earlier Mr. Edward Lyon, a partner in Edgewater, received a call from Woody’s Boat Yard inquiring whether he (Lyon) had storage room for a 28-foot Owens Cruiser, and he told the caller that there was space available. Nothing further was done about it. Edward Lyon testified that he first became aware that a boat was at his dock around 4:00 p.m. on November 5 when he came to work, but that he had no idea to whom it belonged. He did observe that it was securely tied, but did not get into the boat and was unaware of its being out of commission. Richard Lyon, brother and partner of Edward Lyon, said that at 2:00 p.m. on November 5, 1973 he spoke briefly with the man who had brought the boat down, but that the man was in a hurry and gave him