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John Garczynski v. Carmen John Distefano

September 21, 2012

JOHN GARCZYNSKI, PLAINTIFF-APPELLANT,
v.
CARMEN JOHN DISTEFANO, DEFENDANT, AND MERMAID'S COVE MARINA, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. DC-4970-11.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 8, 2012

Before Judges Yannotti and Kennedy.

Plaintiff John Garczynski appeals from a final judgment in the Special Civil Part, following a bench trial, in favor of defendant Mermaid's Cove Marina dismissing his complaint for damages to his boat allegedly caused by defendant's faulty repair work. Plaintiff argues that the trial court's "factual findings and credibility findings were inadequate and insufficient to negate clear proof of negligence." We disagree and affirm.

We discern the facts from the trial record. Plaintiff owned a 1987 Bayliner motor boat, and in 2006 he engaged Fuller Marine & Machine, Inc. to replace the engine with a new "long block" that was "partially dressed." This meant that, while many of the engine components were also replaced, many others that were part of the old engine were re-installed on the new long block. At the same time, Fuller installed exhaust risers on the boat that plaintiff had supplied. The risers were not new at that time, however. Thereafter, the boat ran "okay," according to plaintiff.

Plaintiff kept the boat at the Mermaid's Cove Marina in Brick. The marina was acquired by Carmen John DiStefano (DiStefano) in October 2008. At some point toward the end of 2008 or shortly thereafter, plaintiff discovered that he had a water leak in the boat and that water was accumulating in the bilge. He asked DiStefano*fn1 to make the repair. On March 28, 2009, believing that the most likely cause of the problem was a leaking water tube within the engine, DiStefano pulled the engine out, caulked the area around the tube and re-bedded the engine. When the boat was returned to the water, DiStefano took it out for a test-drive, and found that the engine ran well with no indication that there was water within the engine itself. However, despite the repair, water continued to accumulate in the bilge, and plaintiff and Distefano had some discussions about the problem.

Next, plaintiff complained he was having trouble with the starter and on April 8, 2009, DiStefano replaced a wire which corrected the problem. Again, there was no suggestion that there was water in the engine.

On May 26, 2009, DiStefano again worked on plaintiff's boat because water was still accumulating in the bilge. DiStefano had earlier discovered that the leak was the result of a problem in the exhaust pipe, and he volunteered to "pull the engine" and replace the exhaust "Y pipe" for just the cost of the part. Plaintiff agreed and DiStefano ordered the part and the internal "flappers" from the engine manufacturer.

A "flapper" is a circular piece of metal that fits onto a pivot within the Y pipe. The purpose of a flapper is to keep water from backing into the engine through the exhaust ports. The flapper pivots outward due to exhaust pressure to allow exhaust fumes to escape, but closes off the pipe in response to pressure from outside the engine.

DiStefano testified that he installed the Y pipe and the factory-specified flappers and found the flappers "fit perfectly." He thereafter took the boat out for a test-drive and found that the leak had stopped, there was no water in the engine and that the engine "ran fine."

DiStefano stated that plaintiff never reported any problem with the boat thereafter, although in June 2009 he asked DiStefano if he would "tune" the engine. DiStefano replied that he would not work on the boat again unless plaintiff cleaned it up. DiStefano reported that the boat was in a filthy condition with evidence of mold and a non-working holding tank for human waste. DiStefano felt the boat was a "health hazard" and explained that other boat owners had complained about its condition and smell.

Plaintiff testified, however, that after the May 26, 2009, repair, he took the boat out for a test-drive and thought he heard a "miss" in the engine after about forty minutes of use.

He claims he brought it back to DiStefano and asked for a tune-up, and that DiStefano later told him that "we can't figure out the problem." He asserts he inquired about the boat every week thereafter for the rest of the summer, but was told "different things" by DiStefano ...


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