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03-6206 - In Re: Delmarine, Inc.


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03-6206 - In Re: Delmarine, Inc.
May 26, 2005
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ORDER -- Delmarine's motion to dismiss is GRANTED IN PART AND DENIED IN PART. I find that the Fainers spoliated evidence but will not grant the relief that Delmarine seeks. As alternate relief I ORDER the following: (1) The Fainers will promptly provide Delmarine with any information at their disposal regarding when and where they dumped their vessel. Delmarine may seek to locate the vessel at the dump and, if successful, it may have its expert examine it. (2) Attorney Sommer shall personally pay all reasonable costs of both the search for the vessel and any examination by Delmarine's expert. (3) As alternative relief, if Delmarine's expert is unable to render a reliable opinion as to the cause of the accident based on inspection of the vessel (either because it cannot be found or because its current condition renders any opinion unreliable), the Fainers will be precluded from introducing any expert testimony about the cause of the collision. In addition, the Fainers' request for an extension of my amended discovery schedule to permit their expert report to be served by June 6, 2005, and to allow Delmarine to serve its rebuttal expert report by July 1, 2005, is GRANTED on consent. Finally, the parties' joint request to postpone the completion of discovery as to damages is DENIED without prejudice to renewal after the assigned trial judge rules on the parties' application to bifurcate the trial. Signed by JudgeJames Orenstein on 5/26/05. (Branciforte, Ralph)
December 28, 2005
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ORDER denying 75 Motion for Reconsideration -- Petitioner Delmarine, Inc. ("Delmarine") moves for reconsideration of my May 26, 2005 Order granting in part and denying in part its motion for sanctions arising from the spoliation of evidence. Docket Entry ("DE") 75; see DE 73 (Order). Claimants Greg and Linda Fainer (collectively "the Fainers") oppose the motion. DE 77. For the reasons set forth in the attached Memorandum and Order, I now deny reconsideration and adhere to my earlier ruling. SEE ATTACHED ORDER. Signed by JudgeJames Orenstein on 12/28/05.(Adams-Ciardullo, Diana)
October 24, 2007
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MEMORANDUM OF DECISION AND ORDER - The Court finds that the claimant Linda Fainer proved, by a preponderance of the credible evidence, that the motor boat collision on 6/9/03 in the Great South Bay was caused by the negligence of both motor boat operators Michael J. Starito, Jr. and Gregory Fainer. The Court further determined that the apportionment of liability for both causing the occurrence was Starito 85% and Fainer 15%. In addition, the Court finds that the total amounts of damages with regard to the injuries to Linda Fainer, subject to the apportionment, are as follows: 1. Injuries and pain and suffering to date $750,000.00; 2. Pain and suffering in the future (less reduction to present value) $500,000.00; 3. Past medical expenses $23,422.10. The attorneys and the parties are directed to appear in Court for a conference as to the future proceedings in this case on 11/2/07 at 9:30 a.m. (Signed by Judge Arthur D. Spatt on 10/24/07). (Attachments: # (1) Exhibit 3D# (2) Exhibit 3E# (3) Exhibit 4D# (4) Exhibit 4J) (Coleman, Laurie)
February 1, 2008
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MEMORANDUM OF DECISION AND ORDER - it is hereby ORDERED, that the Clerk of the Court is directed to consolidate case numbers 03CV6206 and 06CV3066 under case number 03CV6206, and close case 06CV3066. All previous rulings shall apply equally in both cases; and it is further ORDERED, that the Clerk of the Court is directed to enter final judgment in favor of the claimant Linda Fainer against Michael J. Starito in the amount of $953,122; and it is further ORDERED, that Delmarine and Starito disclose the remaining policy limits of their insurance coverage within 15 days of this opinion; ORDERED, that with respect to the limitation phase, the parties are directed to submit a letter to this Court within 31 days of this opinion explaining why the entire action should not be closed. (Ordered by Senior Judge Arthur D. Spatt, on 2/1/08). (Coleman, Laurie) (Coleman, Laurie).