12-1543-cv
Zerega Ave. Realty Corp. v. Horneck Offshore Transp., LLC

                     UNITED STATES COURT OF APPEALS
                         FOR THE SECOND CIRCUIT

                                SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY
ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.

           At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
StatesthCourthouse, 40 Foley Square, in the City of New York, on
the 28 day of February, two thousand thirteen.
PRESENT:  DENNY CHIN,
          CHRISTOPHER F. DRONEY,
                    Circuit Judges,
          JANE A. RESTANI,*
                    Judge.
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ZEREGA AVENUE REALTY CORPORATION, FRED
TODINO & SONS, INCORPORATED,
                   Plaintiffs-Counter-
                   Defendants-Appellees,


                        -v.-                                  12-1543-cv

HORNBECK OFFSHORE TRANSPORTATION, LLC,
                   Defendant-Counter-
                   Claimant-Cross-
                   Defendant-Appellant,

                        -and-

HANOVER INSURANCE COMPANY, MASSACHUSETTS
BAY INSURANCE COMPANY, FIREMAN'S FUND
INSURANCE COMPANY, INCORPORATED,
                   Defendants-Cross-
                   Claimants.

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      *
          The Honorable Jane A. Restani, of the United States
Court of International Trade, sitting by designation.
FOR PLAINTIFFS-COUNTER-        ALEX SPIZZ (Stephen D. Oestreich,
DEFENDANTS-APPELLEES:          Rebecca Hollis, on the brief),
                               Todtman, Nachamie, Spizz & Johns,
                               P.C., New York, New York.


FOR DEFENDANT-COUNTER-         GINO ANTHONY ZONGHETTI (Kenneth B.
CLAIMANT-CROSS-DEFENDANT-      Danielsen, on the brief), Kenny &
APPELLANT:                     Zonghetti, LLC, New York, New York.

          Appeal from the United States District Court for the

Southern District of New York (Fox, M.J.).
          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

          Appellant Hornbeck Offshore Transportation, LLC

("Hornbeck") appeals from the March 23, 2012 judgment of the

United States District Court for the Southern District of New

York (Fox, M.J.), entered pursuant to the court's March 14, 2012

Opinion and Order and March 22, 2012 Order finding Hornbeck

liable for damage to the relieving platform and building owned by

plaintiffs Zerega Avenue Realty Corporation and Fred Todino &

Sons, Inc.   Hornbeck principally argues that the district court

erred by (1) finding that Hornbeck's barge allided1 with

plaintiffs' relieving platform on October 29, 2012; (2) finding

that the allision caused plaintiffs' relieving platform to

collapse, resulting in damage to the relieving platform and

plaintiffs' office building; and (3) failing to apply the

doctrine of comparative fault based on plaintiffs' decision to

excavate the relieving platform.   We assume the parties'
     1
          "[I]n admiralty law an allision is the violent
encounter of a moving vessel and a stationary object such as
another vessel, a bridge, a pier, a wharf, or other shore side
installation." II Thomas J. Schoenbaum & Jessica L. McClellan,
Admiralty & Maritime Law § 14-1 (5th ed. 2012) (citing Oxford
English Dictionary (1971)).

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familiarity with the underlying facts, the procedural history of

the case, and the issues on appeal.

          On appeal from a judgment following a bench trial, we

review findings of fact for clear error and legal issues de novo.

See Grace v. Corbis-Sygma, 487 F.3d 113, 118 (2d Cir. 2007).       We

"must give due regard to the trial court's opportunity to judge

the witnesses' credibility."    Fed. R. Civ. P. 52(a)(6); see also

Vasquez v. GMD Shipyard Corp., 582 F.3d 293, 297 (2d Cir. 2009).

In addition, while "a district court's understanding of the

standard of causation is a question of law, reviewed de novo,"

where the district court applied the correct legal standard, we

review its findings of causation for clear error.     Otal Invs.
Ltd. v. M.V. Clary, 494 F.3d 40, 59 (2d Cir. 2007).     We affirm.

          First, the district court's finding that Hornbeck's

barge allided with plaintiffs' relieving platform was based on

the eyewitness testimony of Michael Justino, a disinterested

witness who the court determined was credible.     See Zerega Ave.

Realty Corp. v. Hornbeck Offshore Transp., LLC, No. 04 Civ. 9651
(KNF), 2012 U.S. Dist. LEXIS 38536, at *76-77, *88-89 (S.D.N.Y.

Mar. 14, 2012).   That finding was not clearly erroneous.

          Second, under New York law, plaintiffs "need not prove

. . . that the defendant's conduct was the sole cause of the

injuries."    Prunier v. City of Watertown, 936 F.2d 677, 679 (2d

Cir. 1991).   Rather, "[t]he common law of torts . . . instructs
that the existence of additional factors causing an injury does

not necessarily negate the fact that the defendant's wrong is

also the legal cause of the injury.     In assessing whether one


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cause among many constitutes proximate cause, courts have engaged

in inquiries such as whether a cause is a substantial factor in

bringing about the harm, or whether the cause is too remotely or

insignificantly related to the harm to be a legal basis for

liability."   Henrietta D. v. Bloomberg, 331 F.3d 261, 278-79 (2d

Cir. 2003) (internal citations and quotation marks omitted); see

also Hydro Investors, Inc. v. Trafalgar Power Inc., 227 F.3d 8,

15 (2d Cir. 2000) ("A proximate cause determination does not

require a jury to identify the liable party as the sole cause of
harm; it only asks that the identified cause be a substantial

factor in bringing about the injury.").   Nevertheless, "[w]here

the facts proven at trial demonstrate that there are several

possible causes of an injury, for one or more of which the

defendant was not responsible, and it is just as reasonable and

probable that the injury was the result of one cause as the

other, plaintiff cannot have a recovery since he has failed to

establish that the negligence of the defendant substantially

caused his injury."    Silverman v. United States, No. 04-CV-5647
(ETB), 2008 U.S. Dist. LEXIS 25041, at *37 (E.D.N.Y. Mar. 28,

2008) (quoting Bernstein v. City of New York, 69 N.Y.2d 1020,

1021 (1987)) (internal quotation marks omitted).

            In this case, the district court found that the

allision caused the damage to plaintiffs' relieving platform and

building.    See Zerega, 2012 U.S. Dist. LEXIS 38536, at * 100-01.
Although the district court did not determine that the allision

was the sole cause of plaintiffs' injury, it expressly found, "by

a preponderance of the evidence, that the defendant's negligence


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in operating the tug pulling the barge and alliding with the

plaintiffs' platform was a substantial cause of damage to the

bulkhead and the office building and the platform's collapse."

Id. at *101.    The district court based these findings on the

expert testimony of Steven Schneider, who was the only expert to

observe the relieving platform and the building before the

allision -- and did so more than 50 times between 2001 and July

or August of 2002 -- and who the court determined was credible.

See id. at *95, *100.    In particular, the court gave weight to
Schneider's testimony that the allision "damaged the entire frame

of the relieving platform, which sprung in and then sprang out,

resulting in a structural deformation and creating structural

instability within the relieving platform and, consequently, its

collapse and ensuing damage."    Id. at *95.   We discern no legal

error in the district court's application of the law, and no

clear error in its factual findings.

           Third, the district court found that "the allision

caused the cracks and sinkholes in the relieving platform," id.
at *100, and that "the plaintiffs excavated a test pit prior to

November 6, 2002, in order to determine the cause of the crack(s)

and sinkhole(s) that developed on the relieving platform," id. at

*90.   Although the district court did not explicitly reject

Hornbeck's claim that plaintiffs were at least partially at

fault, the district court did so implicitly, as it implicitly
rejected the notion that plaintiffs' excavation of the platform

was tortious.    Because this finding was not clearly erroneous,

the district court did not err in holding Hornbeck liable for the


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full amount of the damages.   Cf. Otal Invs. Ltd., 494 F.3d at 62

(liability for damage from a maritime collision is to be

allocated among the parties when both parties have contributed by

their fault to cause such damage).

          We have considered Hornbeck's remaining arguments and
conclude that they lack merit.    Accordingly, we AFFIRM the

judgment of the district court.

                                 FOR THE COURT:
                                 Catherine O'Hagan Wolfe, Clerk




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