Opinion
33753/08
12-05-2011
Daniel Durando and Ariana Durando, Plaintiffs, v. The City of New York, GMD Enterprises Corp., GMD Shipyard Corp., FCE Industries LTD., and Brooklyn Navy Yard Development Corporation, Defendants. The City of New York, GMD Enterprises Corp., GMD Shipyard Corp., and Brooklyn Navy Yard Development Corporation, Third-Party Plaintiffs, Third-Party Index No. 21493/10 Champion Construction Corp. d/b/a Champion Scaffold, Defendant.
Attorney for Plaintiffs Daniel L. Durando and Ariana Durando Nicholas P. Giuliano, Esq. Bennett, Giuliano, McDonnell & Perrone, LLP Attorneys for GMD Shipyard, GMD Enterprises, Brooklyn Navy Yard and City of New York Craig S. English, Esq. Kennedy Lillis Schmidt & English Attorneys for Third Party Defendant Champion Construction Corp. d/b/a Champion Scaffold John Tarnowski, Esq. Lester, Schwab Katz & Dwyer Attorneys for Defendant Lincoln General Insurance Company and State National Insurance Company Sharon Moreland, Esq. Schoenfeld Moreland No Attorney for Defendant FCE Industries, Ltd
Attorney for Plaintiffs Daniel L. Durando and Ariana Durando Nicholas P. Giuliano, Esq. Bennett, Giuliano, McDonnell & Perrone, LLP
Attorneys for GMD Shipyard, GMD Enterprises, Brooklyn Navy Yard and City of New York Craig S. English, Esq. Kennedy Lillis Schmidt & English
Attorneys for Third Party Defendant Champion Construction Corp. d/b/a Champion Scaffold John Tarnowski, Esq. Lester, Schwab Katz & Dwyer
Attorneys for Defendant Lincoln General Insurance Company and State National Insurance Company Sharon Moreland, Esq. Schoenfeld Moreland
No Attorney for Defendant FCE Industries, Ltd
Francois Rivera, J.
By notice of motion filed on May 25, 2011, under motion sequence number eight, plaintiffs Daniel L. Durando and Ariana Durando, move for an order pursuant to CPLR 3212 granting them: (1) partial summary judgment with respect to liability under Labor Law §§ 200, 240(1) and 241(6) as against defendants GMD Enterprises Corp (hereinafter GMD Enterprises) and GMD Shipyard Corp. (hereinafter GMD Shipyard); (2) partial summary judgment with respect to liability under
Plaintiff Ariana Durando's claims are derivative only. All singular references to plaintiff relate to plaintiff Daniel Durando.
Labor Law §§ 240(1) and 241(6) as against defendants FCE Industries Ltd., (hereinafter FCE), Brooklyn Navy Yard Development Corporation (hereinafter BNYDC), and the City of New York (hereinafter City), and (3) a trial on damages. By notice of cross-motion filed on May 25, 2011, under motion sequence number nine, defendants/third-party plaintiffs GMD Shipyard, GMD Enterprises, City and BNYDC (collectively hereinafter referred to as the Shipyard Defendants) move for an order pursuant to CPLR 3212: (1) granting them summary judgment dismissing plaintiffs' complaint as against them; and (2) granting GMD Shipyard summary judgment on its indemnification claim against third-party defendant Champion Construction Corp. (hereinafter Champion). By notice of cross-motion filed on June 9, 2011, under motion sequence number 10, third-party defendant Champion moves for an order pursuant to CPLR 3212 granting it summary judgment dismissing all claims against it.
BACKGROUND
On December 18, 2008 plaintiffs commenced the instant action by filing a summons and complaint with the King's County Clerk's office. By verified answer dated February 23, 2009, GMD Enterprises, GMD Shipyard and BNYDC joined issue. On April 7, 2009, GMD Enterprises, GMD Shipyard and BNYDC commenced the third-party action by filing the third-party summons and complaint with the King's County Clerk's office. By a third-party answer dated September 15, 2009, Champion joined issue. Champion's answer also contained a counterclaim (which it labeled a cross-claim), to which GMD Shipyard, GMD Enterprises and BNYDC submitted a reply dated October 6, 2009. By way of an amended summons and complaint dated January 11, 2010, plaintiffs added the City as a party defendant. GMD Enterprises, GMD Shipyard and BNYDC joined issue to the amended complaint by way of an answer dated March 1, 2010. By way of an undated answer, the City joined issue to the amended complaint, and thereafter, the City submitted an amended answer (dated May 11, 2010) to the amended complaint. At or around the same time, the City, GMD Enterprises, GMD Shipyard and BNYDC submitted an amended third-party complaint that added the City as a third-party plaintiff. Champion joined issue to the amended third-party complaint by way of an answer dated June 17, 2010.
BNYDC also served a separate verified answer dated February 27, 2009 by different counsel. BNYDC later formally substituted its current counsel, which had submitted the February 23, 2009 answer on BNYDC's behalf.
Plaintiff alleges the following salient facts in the amended complaint. Plaintiff states that he was injured on November 7, 2008, while dismantling a scaffold that had been set-up inside the hold of a vessel, the Chemical Pioneer, when he stepped onto a piece of plywood that had been placed over a hole. This piece of plywood was allegedly improperly placed or secured, and when plaintiff stepped on it, he fell into the hole up to his shoulders. At the time of the accident, the Chemical Pioneer was undergoing repairs in a dry dock operated by GMD Shipyard located in the Brooklyn Navy Yard (hereinafter Navy Yard). The City is the owner of the Navy Yard, and the City leased it to the BNYDC, which in turn leased space in the Navy Yard to GMD Enterprises, GMD Shipyard, and FCE. It was GMD Shipyard that entered into the contract with the owner or operator of a vessel, the Chemical Pioneer, to perform the repair/construction work on the vessel at GMD Shipyard's dry dock facility located in the Navy Yard. GMD Shipyard also entered into a contract with Champion, plaintiff's employer, calling for Champion to install scaffolding to allow GMD Shipyard to perform some of its work inside the Chemical Pioneer. Plaintiff's injury occurred while he was working for Champion dismantling the scaffold. Based on these facts, plaintiff's first cause of action alleges that defendants are liable based on a violation of Labor Law § 240, the second cause of action alleges that they are liable based on a violation of Labor Law § 241(6), the third cause of action alleges that they are liable based on negligence, the fourth cause of action alleges that defendants are liable under general maritime law, and the fifth cause of action alleges that the plaintiff Ariana Durando is entitled to recover for loss of services and other derivative claims.
In the amended third-party complaint, third-party plaintiffs allege that they are entitled to contribution, and common-law indemnification from Champion. In addition, GMD Shipyard alleges that it is entitled to recover from Champion based on a contractual indemnification provision of its contract with Champion and also based on Champion's breach of the insurance procurement provisions of this contract.
MOTION PAPERS
Plaintiffs' motion papers consist of an affirmation of its counsel, an index of exhibits, and annexed exhibits labeled 1 through 38. Exhibit 1 is the summons and complaint. Exhibit 2 is the answer of GMD Enterprises, GMD Shipyard and BNYDC, dated February 23, 2009. Exhibit 3 is the answer of BNYDC dated February 27, 2009. Exhibit 4 is a notice of change of attorney dated May 26, 2009. Exhibit 5 is the amended summons and complaint dated January 11, 2010. Exhibit 6 is the March 1, 2010 answer of GMD Enterprises, GMD Shipyard and BNYDC to the amended complaint. Exhibit 7 is the undated answer of the City to the amended complaint. Exhibit 8 is a consent to change attorney form dated April 6, 2010. Exhibit 9 is the May 11, 2010 amended answer of the City to the amended complaint. Exhibit 10 is a consent to change attorney form dated May 12, 2010. Exhibit 11 is the third-party summons and complaint dated April 2, 2009. Exhibit 12 is Champion's September 15, 2009 answer to the third-party complaint. Exhibit 13 is the GMD Enterprises, GMD Shipyard and BNYDC's October 6, 2009 reply to Champion's counterclaim. Exhibit 14 is the amended third-party complaint dated May 2010. Exhibit 15 is Champion's June 17, 2010 answer to the amended third-party complaint. Exhibit 16 is a copy of this court's order, dated April 29, 2011, that denied the parties' prior summary judgment motions. Exhibit 17 is plaintiffs' verified bill of particulars dated August 4, 2009. Exhibit 18 is plaintiffs' notice of discovery and inspection dated September 1, 2009. Exhibit 19 is the preliminary conference order dated October 8, 2009. Exhibit 20 is GMD Enterprises, GMD Shipyard and BNYDC's December 14, 2009 response to plaintiffs' demand for documents, with a copy of the lease between the City and BNYDC, a copy of the agreements between GMD Shipyard and Champion, and Drydock specifications for the S/S Chemical Pioneer appended thereto. Exhibit 21 is GMD Shipyard, GMD Enterprises and BNYDC's December 14, 2009 response to plaintiffs' demand for all witnesses. Exhibit 22 is plaintiffs notice to admit and document demand dated March 10, 2010. Exhibit 23 is GMD Enterprises, GMD Shipyard and BNYDC's April 8, 2010 response to plaintiff's second demand for documents. Exhibit 24 is plaintiff's claim for compensation under the Longshore and Harbor Workers Compensation Act (LHWCA) dated April 17, 2009. Exhibit 25 is a U.S. Department of Labor, Office of Worker's Compensation (hereafter OWCP) memorandum of informal conference dated June 23, 2009. Exhibit 26 is a copy of a June 18, 2009 E-mail and attached letter with the same date from plaintiffs' counsel to GMD Shipyard regarding plaintiff's LHWCA claim. Exhibit 27 is a copy of a June 24 2009 e-mail from plaintiff's counsel to GMD Shipyard regarding plaintiff's LHWCA claim. Exhibit 28 is a copy of a August 7, 2009 letter from and OWCP claims examiner to plaintiffs' counsel. Exhibit 29 is a copy of a August 17, 2009 letter to plaintiff from the OWCP claims examiner. Exhibit 30 is a copy of a November 13, 2009 letter from plaintiffs' counsel to the OWCP claims examiner. Exhibit 31 is a copy of a November 19, 2009 status letter from the OWCP claims examiner addressed to several parties. Exhibit 32 is the transcript of plaintiff's April 15, 2010 deposition. Exhibit 33 is the transcript of GMD Shipyard's September 1, 2010 deposition by John McCormick. Exhibit 34 is the transcript of Champion's September 1, 2010 deposition by Michael Phalen. Exhibit 35 is the transcript of GMD Shipyard's October 28, 2010 deposition by Kevin Nugent. Exhibit 36 is a March 8, 2011 "reply" affidavit of plaintiff. Exhibit 37 are copies of photographs. Exhibit 38 is a copy of a GMD Shipyard accident report related to plaintiff's accident.
The Shipyard Defendants cross-motion papers consist of an affirmation of counsel and Exhibits labeled 1 through 27. Exhibit 1 is the summons and complaint. Exhibit 2 is the answer of GMD Enterprises, GMD Shipyard and BNYDC, dated February 23, 2009. Exhibit 3 is the answer of BNYDC dated February 27, 2009. Exhibit 4 is a notice of change of attorney dated May 26, 2009. Exhibit 5 is the amended summons and complaint dated January 11, 2010. Exhibit 6 is the March 1, 2010 answer of GMD Enterprises, GMD Shipyard and BNYDC to the amended complaint. Exhibit 7 is the undated answer of the City to the amended complaint. Exhibit 8 is a consent to change attorney form dated April 6, 2010. Exhibit 9 is the May 11, 2010 amended answer of the City to the amended complaint. Exhibit 10 is a consent to change attorney form dated May 12, 2010. Exhibit 11 is the third-party summons and complaint dated April 2, 2009. Exhibit 12 is Champion's September 15, 2009 answer to the third-party complaint. Exhibit 13 is the GMD Enterprises, GMD Shipyard and BNYDC's October 6, 2009 reply to Champion's counterclaim. Exhibit 14 is the amended third-party complaint dated May 2010. Exhibit 15 is Champion's June 17, 2010 answer to the amended third-party complaint. Exhibit 16 is a copy of this court's order, dated April 29, 2011, that denied the parties' prior summary judgment motions. Exhibit 17 is a copy is a copy of a June 18, 2009 letter from plaintiffs' counsel to GMD Shipyard regarding plaintiff's LHWCA claim. Exhibit 18 is a copy of a November 19, 2009 status letter from the OWCP claims examiner addressed to several parties. Exhibit 19 is Shipyard Defendants' September 20, 2010 request for insurance information from Champion. Exhibit 20 contains printouts of E-mail correspondence between counsel for the Shipyard Defendants and Champion. Exhibit 21 contains a printout of a December 15, 2010 E-mail from Champion's counsel to the Shipyard Defendants' counsel and a copy of Champion's workers' compensation policy with Majestic Insurance Company (hereinafter Majestic). Exhibit 22 is a copy of a June 10, 2002 decision and order (Sumner v FCE Industries LTD., Sup Ct, Kings County, June 10, 2002, R. Rivera, J., Index No. 2839/00). Exhibit 23 is a copy of a February 5, 2003 memorandum & order (Sochacki v The United States of America, US Dist Ct, ED NY, 99 Civ 8008, Korman, C.J., Feb. 5, 2003). Exhibit 24 is a copy of the drydock specifications for the S/S Chemical Pioneer dated April 1, 2008. Exhibit 25 is a copy of an agreement between GMD Shipyard and Champion dated September 6, 2009. Exhibit 26 is an affidavit by Michael Cranston, President of GMD Shipyard and GMD Enterprises dated January 18, 2011, with a copy of GMD Shipyard's workers compensation policy with National Union Fire Ins. Co. of Pittsburgh, PA., (National Union) attached as exhibit 1 to Cranston's affidavit. Exhibit 27 is a December 14, 2010 affidavit from Martin H. Banker, Vice President and Deputy General Counsel of BNYDC, with a copy of the lease between the City and BNYCD dated June 6, 1996 attached as Exhibit 1 to Banker's affidavit, and with a copy of the lease between BNYCD and GMD Enterprises attached as Exhibit 2 to Banker's affidavit.
The Shipyard Defendants submitted a supplemental affirmation of counsel in support of its motion with a August 10, 2010 decision and order (Gould v City of New York, Sup Ct, Kings County, Aug. 10, 2010, Bayne, J., Index No. 33476/08) attached as an exhibit thereto.
Champion's cross-motion papers consist of an affirmation of counsel, a list of exhibits and exhibits labeled 1 through 40. Exhibit 1 is the summons and complaint. Exhibit 2 is the answer of GMD Enterprises, GMD Shipyard and BNYDC, dated February 23, 2009. Exhibit 3 is the answer of BNYDC dated February 27, 2009. Exhibit 4 is a notice of change of attorney dated May 26, 2009. Exhibit 5 is the amended summons and complaint dated January 11, 2010. Exhibit 6 is the March 1, 2010 answer of GMD Enterprises, GMD Shipyard and BNYDC to the amended complaint. Exhibit 7 is the undated answer of the City to the amended complaint. Exhibit 8 is a consent to change attorney form dated April 6, 2010. Exhibit 9 is the May 11, 2010 amended answer of the City to the amended complaint. Exhibit 10 is a consent to change attorney form dated May 12, 2010. Exhibit 11 is the third-party summons and complaint dated April 2, 2009. Exhibit 12 is Champion's September 15, 2009 answer to the third-party complaint. Exhibit 13 is the GMD Enterprises, GMD Shipyard and BNYDC's October 6, 2009 reply to Champion's counterclaim. Exhibit 14 is the amended third-party complaint dated May 2010. Exhibit 15 is Champion's June 17, 2010 answer to the amended third-party complaint. Exhibit 16 is a copy of this court's order, dated April 29, 2011, that denied the parties' prior summary judgment motions. Exhibit 17 is plaintiffs' verified bill of particulars dated August 4, 2009. Exhibit 18 is plaintiffs' notice of discovery and inspection dated September 1, 2009. Exhibit 19 is the preliminary conference order dated October 8, 2009. Exhibit 20 is GMD Enterprises, GMD Shipyard and BNYDC's December 14, 2009 response to plaintiffs' demand for documents, with a copy of the lease between the City and BNYDC, a copy of the agreements between GMD Shipyard and Champion, and Drydock specifications for the S/S Chemical Pioneer appended thereto. Exhibit 21 is GMD Shipyard, GMD Enterprises and BNYDC's December 14, 2009 response to plaintiffs' demand for all witnesses. Exhibit 22 is plaintiffs notice to admit and document demand dated March 10, 2010. Exhibit 23 is GMD Enterprises, GMD Shipyard and BNYDC's April 8, 2010 response to plaintiff's second demand for documents. Exhibit 24 is plaintiff's claim for compensation under the Longshore and Harbor Workers Compensation Act (LHWCA) dated April 17, 2009. Exhibit 25 is a U.S. Department of Labor, Office of Worker's Compensation (hereafter OWCP) memorandum of informal conference dated June 23, 2009. Exhibit 26 is a copy of a June 18, 2009 E-mail and attached letter with the same date from plaintiffs' counsel to GMD Shipyard regarding plaintiff's LHWCA claim. Exhibit 27 is a copy of a June 24 2009 e-mail from plaintiff's counsel to GMD Shipyard regarding plaintiff's LHWCA claim. Exhibit 28 is a copy of a August 7, 2009 letter from and OWCP claims examiner to plaintiffs' counsel. Exhibit 29 is a copy of a August 17, 2009 letter to plaintiff from the OWCP claims examiner. Exhibit 30 is a copy of a November 13, 2009 letter from plaintiffs' counsel to the OWCP claims examiner. Exhibit 31 is a copy of a November 19, 2009 status letter from the OWCP claims examiner addressed to several parties. Exhibit 32 is the transcript of plaintiff's April 15, 2010 deposition. Exhibit 33 is the transcript of GMD Shipyard's September 1, 2010 deposition by John McCormick. Exhibit 34 is the transcript of Champion's September 1, 2010 deposition by Michael Phalen. Exhibit 35 is the transcript of GMD Shipyard's October 28, 2010 deposition by Kevin Nugent. Exhibit 36 is a March 8, 2011 "reply" affidavit of plaintiff. Exhibit 37 are copies of photographs. Exhibit 38 is a copy of a GMD Shipyard accident report related to plaintiff's accident. Exhibit 39 is a copy of GMD Shipyard's agreement with Champion. Exhibit 40 is a copy of the signature page of Michael Phalen's deposition transcript with Michael Phalen's notarized signature dated May 20, 2011.
The Shipyard Defendants submitted an affirmation of counsel in opposition to plaintiffs' motion with exhibits labeled 17 through 31 appended thereto. Exhibit 17 is a copy is a copy of a June 18, 2009 letter from plaintiffs' counsel to GMD Shipyard regarding plaintiff's LHWCA claim. Exhibit 18 is a copy of a November 19, 2009 status letter from the OWCP claims examiner addressed to several parties. Exhibit 19 is Shipyard Defendants' September 20, 2010 request for insurance information from Champion. Exhibit 20 contains printouts of E-mail correspondence between counsel for the Shipyard Defendants and Champion. Exhibit 21 contains a printout of a December 15, 2010 E-mail from Champion's counsel to the Shipyard Defendants' counsel and a copy of Champion's workers' compensation policy with Majestic Insurance Company (hereinafter Majestic). Exhibit 22 is a copy of a June 10, 2002 decision and order (Sumner v FCE Industries LTD., Sup Ct, Kings County, June 10, 2002, R. Rivera, J., Index No. 2839/00). Exhibit 23 is a copy of a February 5, 2003 memorandum & order (Sochacki v The United States of America, US Dist Ct, ED NY, 99 Civ 8008, Korman, C.J., Feb. 5, 2003). Exhibit 24 is a copy of the drydock specifications for the S/S Chemical Pioneer dated April 1, 2008. Exhibit 25 is a copy of an agreement between GMD Shipyard and Champion dated September 6, 2009. Exhibit 26 is an affidavit by Michael Cranston, President of GMD Shipyard and GMD Enterprises dated January 18, 2011, with a copy of GMD Shipyard's workers compensation policy with National Union Fire Ins. Co. of Pittsburgh, PA., (National Union) attached as exhibit 1 to Cranston's affidavit. Exhibit 27 is a December 14, 2010 affidavit from Martin H. Banker, Vice President and Deputy General Counsel of BNYDC, with a copy of the lease between the City and BNYCD dated June 6, 1996 attached as Exhibit 1 to Banker's affidavit, and with a copy of the lease between BNYCD and GMD Enterprises attached as Exhibit 2 to Banker's affidavit. Exhibit 28 is a copy of a November 12, 2009 letter from counsel for Majestic to the New York State Workers Compensation Board (hereinafter NY Board). Exhibit 29 is a copy of a December 9, 2009 letter from plaintiff's former counsel to the NY Board. Exhibit 30 is a copy of the NY Board's memorandum decision filed February 5, 2010. Exhibit 31 is a November 13, 2009 letter from plaintiff's counsel to the OWCP's claims examiner.
The Shipyard Defendants submitted an affirmation of counsel in opposition to Champion's cross- motion with exhibits labeled 17 through 32 appended thereto. Exhibit 17 is a copy is a copy of a June 18, 2009 letter from plaintiffs' counsel to GMD Shipyard regarding plaintiff's LHWCA claim. Exhibit 18 is a copy of a November 19, 2009 status letter from the OWCP claims examiner addressed to several parties. Exhibit 19 is Shipyard Defendants' September 20, 2010 request for insurance information from Champion. Exhibit 20 contains printouts of E-mail correspondence between counsel for the Shipyard Defendants and Champion. Exhibit 21 contains a printout of a December 15, 2010 E-mail from Champion's counsel to the Shipyard Defendants' counsel and a copy of Champion's workers' compensation policy with Majestic Insurance Company (hereinafter Majestic). Exhibit 22 is a copy of a June 10, 2002 decision and order (Sumner v FCE Industries LTD., Sup Ct, Kings County, June 10, 2002, R. Rivera, J., Index No. 2839/00). Exhibit 23 is a copy of a February 5, 2003 memorandum & order (Sochacki v The United States of America, US Dist Ct, ED NY, 99 Civ 8008, Korman, C.J., Feb. 5, 2003). Exhibit 24 is a copy of the drydock specifications for the S/S Chemical Pioneer dated April 1, 2008. Exhibit 25 is a copy of an agreement between GMD Shipyard and Champion dated September 6, 2009. Exhibit 26 is an affidavit by Michael Cranston, President of GMD Shipyard and GMD Enterprises dated January 18, 2011, with a copy of GMD Shipyard's workers compensation policy with National Union Fire Ins. Co. of Pittsburgh, PA., (National Union) attached as exhibit 1 to Cranston's affidavit. Exhibit 27 is a December 14, 2010 affidavit from Martin H. Banker, Vice President and Deputy General Counsel of BNYDC, with a copy of the lease between the City and BNYCD dated June 6, 1996 attached as Exhibit 1 to Banker's affidavit, and with a copy of the lease between BNYCD and GMD Enterprises attached as Exhibit 2 to Banker's affidavit. Exhibit 28 is a copy of a November 12, 2009 letter from counsel for Majestic to the New York State Workers Compensation Board (hereinafter NY Board). Exhibit 29 is a copy of a December 9, 2009 letter from plaintiff's former counsel to the NY Board. Exhibit 30 is a copy of the NY Board's memorandum decision filed February 5, 2010. Exhibit 31 is a November 13, 2009 letter from plaintiff's counsel to the OWCP's claims examiner. Exhibit 32 is an affidavit from John A. Tylawsky, a professional engineer, dated April 26, 2011.
The Shipyard Defendants submitted a reply affirmation of counsel in further support of its cross-motion with exhibits labeled 28 through 36 appended thereto. Exhibit 28 is a copy of a November 12, 2009 letter from counsel for Majestic to the New York State Workers Compensation Board (hereinafter NY Board). Exhibit 29 is a copy of a December 9, 2009 letter from plaintiff's former counsel to the NY Board. Exhibit 30 is a copy of the NY Board's memorandum decision filed February 5, 2010. Exhibit 31 is a November 13, 2009 letter from plaintiff's counsel to the OWCP's claims examiner. Exhibit 32 is an affidavit from John A. Tylawsky, a professional engineer, dated April 26, 2011. Exhibit 33 is plaintiffs' August 10, 2010 notice to take depositions of defendants and third-party defendants. Exhibit 34 is a copy of the note of issue that was filed on February 14, 2011. Exhibit 35 is a reply affidavit of plaintiff dated March 8, 2011. Exhibit 36 is an affidavit of Janet Boger, a Senior Technical Specialist with Chartis Claims, Inc. (hereinafter Chartis), National Union's authorized representative, dated March 30, 2011, with printouts of E-mail correspondence between counsel for the Shipyard Defendants and Champion attached as Exhibit 1 to Boger's affidavit, with National Union's August 19, 2009 controvertion of plaintiff's LWHCA claim attached as Exhibit 2 to Boger's affidavit, with a copy of a November 13, 2009 letter from plaintiff's counsel to the OWCP's claims examiner attached as Exhibit 3 to Boger's affidavit, and a copy of a November 19, 2009 status letter from the OWCP claims examiner addressed to several parties is attached as Exhibit 4 to Boger's affidavit.
UNDISPUTED FACTS
The underlying facts relating to plaintiff's November 7, 2008 accident are generally undisputed by the parties. Plaintiff's accident occurred in a dry dock located within the Brooklyn Navy Yard. The City is the fee owner of the entire Navy Yard, and, pursuant to a lease, leases the entirety of the Navy Yard to the BNYDC. The BNYDC, in turn, subleases a portion of the Navy Yard, including the dry dock at issue, to GMD Enterprises. GMD Shipyard is an entity that operates a ship repair business in the Navy Yard.
It is noted that plaintiff's deposition transcript has been signed by plaintiff. Although the transcripts of GMD Shipyard's witnesses McCormack and Nugent that are attached as exhibits to plaintiffs' motion papers and to Champion's motion papers are unsigned, the Shipyard Defendants have relied upon those transcripts in their reply memorandum of law in support of their cross-motion for summary judgment. Finally, Champion has supplied a signed copy of the signature page of its witness, Phalen.
While not necessarily undisputed by plaintiffs, it is noted that the Shipyard Defendants have submitted an affidavit from GMD Enterprises president, who represents that GMD Enterprises only functions as a lease holder, and that it informally subleases the shipyard to GMD Shipyard.
In April 2008, GMD Shipyard entered into an agreement with the owners or operators of the Chemical Pioneer, a chemical tanker, to take it into one of the graving (or graven) docks, a type of dry dock, located at the Brooklyn Navy Yard in order to carry out Coast Guard inspections and perform repair work. Some of the work involved replacement of steel, welding, and the coating of the overhead portions of the cargo and ballast tanks of the Chemical Pioneer. In order for its own workers and the coating subcontractor to reach these overhead areas, GMD Shipyard contracted with Champion, plaintiff's employer, to set up scaffolding (also referred as staging) in a several locations in the interior tanks or compartments of the Chemical Pioneer and to remove the scaffolding when the overhead work was completed. GMD Shipyard paid Champion approximately $100,000 for its scaffolding work.
At his deposition, McCormick, one of GMD Shipyards witnesses, who was an independent consultant who was hired by GMD Shipyard to act as the project manager for the work on the Chemical Pioneer, testified that the graving dock at issue is approximately 1,200 feet long by 120 feet wide and approximately 50 feet deep, with a gate at one end to allow a vessel to enter or exit. Prior to the vessel entering the graving dock, the dock is flooded with water. The gates are then opened to allow the vessel to enter. Once the vessel is in place, the water is pumped out, and the vessel sits on blocks.
Plaintiff was a journeyman carpenter, and the work he performed for Champion prior to the day of his accident generally involved the erection of sidewalk bridges and scaffolding around City schools. A few weeks before the accident, plaintiff had worked on erecting stair unit scaffold frames inside a large tanker that was at the Navy Yard, and approximately a week or two before the accident plaintiff had worked on dismantling a scaffold in another portion of the Chemical Pioneer.
On the date of his accident, plaintiff was directed to remove scaffolding from a tank compartment in the "front right" of Chemical Pioneer. Plaintiff and his coworker proceeded to take apart the scaffold planking and framing and they lifted these pieces out of the hatch at the top of the compartment up to the truck driver. Just before his accident, plaintiff was walking around on the deck or floor of the compartment picking up smaller material, such as nails and screw jacks, and placing them in a bucket. The deck had holes, described as "limber" or "lightening hole," that were two fee by three feet ovals, that are uncovered when the ship is in operation and that allow liquid cargo or bilge to transfer throughout an entire tank. Phelan, Champion's witness testified that the GMD Shipyard representative he dealt with assured him that GMD Shipyard would cover the holes in the deck and both of GMD Shipyard's witnesses conceded GMD Shipyard had made and placed the plywood covers over the holes in the deck. Plaintiff, while he was walking around picking up the smaller pieces, stepped onto one of these plywood covers, which apparently shifted, causing plaintiff to fall into the hole up to his arms, and suffer the injuries at issue here. In his deposition testimony, plaintiff estimated that he had been performing work in the compartment for approximately three and one half hours before his accident. Nugent, GMD Shipyard's health, safety and environmental director stated that he examined the cover at issue, and found that a second plywood piece attached to bottom of the cover and intended to hold the cover in place on the hole was not big enough and would allow the cover to slip off of the hole.
The GMD Shipyard witnesses essentially testified that each tank on the is divided into separate compartments and that the limber holes allow the transfer of liquids throughout the entire tank.
Plaintiff thereafter commenced this action. In addition, plaintiff applied for and has been receiving New York State Workers' Compensation benefits that were paid for by Majestic, Champion's worker's compensation carrier. In April 2009, plaintiff filed a claim with the United States Department of Labor, Employment Standards Administration, Office of Worker's Compensation Programs (OWCP) for compensation under the Longshore and Harbor Workers Compensation Act (LHWCA) (33 USC, ch 18). After determining that Champion's policy with Majestic excluded coverage for LHWCA compensation, plaintiff's counsel gave notice to GMD Shipyard that it was statutorily required to provide LHWCA compensation in light of Champion's failure to secure payment of such compensation (33 USC § 904[a]). National Union, GMD Shipyard's LHWCA carrier, informed the OWCP that it was controverting plaintiff's right to LHWCA compensation, as it was investigating whether the accident fell within the requirements of LHWCA. Plaintiff, however, withdrew his claim for LHWCA compensation before the OWCP made any determination with respect to National Union's obligation to provide LHWCA compensation. It is in this factual context that the parties have made their respective summary judgment motions.
SUMMARY JUDGMENT STANDARD
It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of any material factual issues (Giuffrida v Citybank, 100 NY2d 72, 81 [2003]). A failure to make such a prima facie showing requires the denial of summary judgment, regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 NY2d 1062, 1063 [1993]). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of a material issue of fact (Alvarez, 68 NY2d at 324). PLAINTIFFS' MOTION MARITIME LAW
Turning first to plaintiff's motion, plaintiff argues that he is entitled to partial summary judgment with respect to his Labor Law §§ 240(1) and 241(6) claim against defendants. In opposition, the City contends that plaintiff's claims based on the strict liability and/or vicarious liability provisions of Labor Law §§ 240 and 241(6) are preempted by general rules of Federal maritime law. Since preemption would preclude recovery on plaintiff's section 240(1) and 241(6) claims regardless of whether plaintiff has made a prima facie showing, the court will first address the City's preemption argument.
Pursuant to the "savings to suitors" clause of the Federal Judiciary Act (28 USC 1333[1]), state courts share concurrent original jurisdiction of all in personam admiralty and maritime cases with Federal District Courts as long as they apply Federal maritime law (Offshore Logistics v Tallentire, 477 US 207, 222-223 [1986]; O'Hara, 89 NY2d at 645; Lerner v Karageorgis Lines, Inc., 66 NY2d 479, 484-485 [1985]).
As plaintiff essentially concedes, plaintiff's accident falls within maritime tort jurisdiction. Maritime tort jurisdiction lies if both the "situs" or "location" test and the maritime "nexus" or "connection" test are satisfied (Jerome B. Grubart, Inc. v Great Lakes Dredge & Dock, 513 US 527, 534 [1995]; O'Hara v Bayliner, 89 NY2d 636, 644-645 [1997], cert denied 522 US 822 [1997]; Torres v City of New York, 177 AD2d 97, 101-102, 109 [1992], lv denied 80 NY2d 759 [1992], cert denied 507 US 986 [1993]). Here, the situs test is met since the dry dock in which the accident occurred is considered part of navigable waters (see Simmons v The Steamship Jefferson, 215 US 130, 143 [1909]; Butler v Robins Dry Dock & Repair Co., 240 NY 23, 26-27 [1925]; McDonald v City of New York, 231 AD2d 556, 557 [1996]; Torres, 177 AD2d at 108; see also Vasquez v GMD Shipyard Corp., 582 F3d 293, 298-299 [2nd Cir 2009]; Sea Vessel, Inc., v Reyes, 23 F3d 345, 348-349 [11th Cir 1994]; but see McElheney v Workers' Compensation Appeal Bd., 596 Pa 48, 940 A2d 351 [2008]) and the maritime nexus test is met since the ship repair activity in which plaintiff was engaged at the time of the accident is related to traditional maritime concerns (see Torres, 177 AD2d at 109-113; see also McDonald, 231 AD2d at 557; Vasquez, 582 F3d at 299-300; Sea Vessel, Inc., 23 F3d at 350-351).
Contrary to the City's position, however, the existence of maritime jurisdiction does not necessarily mandate preemption of state tort law (see Olsen v James Miller Mar. Serv., Inc., 16 AD3d 169, 171 [2005]). This issue was addressed by the Court of Appeals in Cammon v City of New York (95 NY2d 583 [2000]), a case involving a dock builder who was injured while performing renovation work on a City owned pier while standing on a "float stage" located in navigable waters (id. at 586). The Court found that, although the action involved maritime jurisdiction, application of Labor Law §§ 240 and 241(6) against the landowner and the general contractor "will not unduly interfere with a fundamental characteristic of maritime law or unduly hamper maritime commerce" and thus held that the plaintiff's State Labor Law claims were not preempted by Federal maritime law (Cammon, 95 NY2d at 590). In reaching this decision, the Court noted that New York has an important state interest in protecting its workers, that this interest in protecting workers is consonant with the goals of general maritime law, and that, in light of certain strict liability provisions in other aspects of maritime law, strict liability provisions protecting New York workers are not necessarily antithetical to maritime law (id. at 588-589). Especially relevant here is the Court's statement that "[l]ocal regulations that do not affect vessel operations, but rather govern liability issues with respect to landowners and contractors within the State, have no extraterritorial effect" (id. at 589).
Although in Cammon the Court of Appeals noted that there may well be factual situations where the need for uniform maritime rules may require preemption of these strict liability provisions, here, as in Cammon, the local concerns predominate. Of note, the entities involved are based in New York (GMD Shipyard and GMD Enterprises are New York corporations, BNYDC is a New York non-profit corporation, and the City is a New York municipal corporation) and are either landowners, lessees, or contractors. The vessel owner, the only entity truly involved in interstate maritime commerce and vessel operations, is not a party to the action. In addition, although the ship repairs are deemed to have occurred in navigable waters, at the time of the accident, the water had been drained from the dry dock and the Chemical Pioneer was not in operation. Moreover, the plywood cover over the limber hole at issue was not part of the ship's equipment maintained by the vessel owner, but rather, was placed over the hole by GMD Shipyard during the course of the repair work.
Since, as discussed below, the plaintiff is an employee covered by the LHWCA, the LHWCA would have barred any strict liability claims against the vessel owner (see Lee v Astoria Generating Co., L.P., 13 NY3d 382 [2009], cert denied 562 US ___, 131 SCt 215 [2010]; 33 USC § 905[b]).
Under these circumstances, applying New York law would have no direct impact on vessel operations or interstate or international commerce (see In re Ballard Shipping Co. v Beach Shellfish, 32 F3d 623, 630 [1st Cir 1994]) or at least no impact sufficient to override the strong state interest at stake (see Cammon, 95 NY2d at 588-90). In the end, the City has failed to demonstrate that there are "far-reaching implications for . . . entities engaged in maritime commerce or [a] threat to the uniformity of Federal maritime law sufficient to displace application of an important State health and safety measure, even though it may impose strict liability" (Cammon, 95 NY2d at 590; Eldoh v Astoria Generating Co., L.P., 81 AD3d 871, 874 [2011]; Olson, 16 AD3d at 171; Vasquez v FCE Industries, LTD., 2008 WL 4224396 at 4 [EDNY 2008], affirmed sub nom. Vasquez v GMD Shipyard Corp., 582 F3d 293 [2nd Cir 2009]; McAllister v G & S Investors, 358 F Supp2d 146, 150 [EDNY 2005]; Palanquet v Weeks Marine, Inc., 333 F Supp2d 58, 66 [EDNY 2004]; see also Robinson v Alter Barge Line, Inc., 513 F 3d 668, 672-674 [7th Cir 2008]). Of note, courts have reached the same conclusion with respect to Labor Law §§ 240(1) and 241(6) causes of action involving other similar accidents at the same Navy Yard dry dock facilities that are at issue here (Vasquez, 2008 WL 4224396 at 4; Gould v City of New York, Sup Ct, Kings County, August 10, 2010, Bayne, J., index No. 33476/08; Salazar-Torres v GMD Shipyard, 22 Misc 3d 1139 [A], 2009 NY Slip Op 50512 [U][Sup Ct, Kings County 2009]; Kotlewski v Brooklyn Navy Yard Dev. Corp., Sup Ct, Kings County, March 1, 2002, Bruno, J., index No. 34122/99). General maritime law is thus not a bar to plaintiff's Labor Law §§ 240(1) and 241(6) causes of action.
The Shipyard Defendants' reliance on Appellate Division decisions that predate Cammon (see Eriksen v Long Island Lighting Co., 236 AD2d 439 [1997]; Agis v City of New York, 231 AD2d 537 [1996]; McDonald, 231 AD2d 556 [1996]; Tompkins v Port of New York Auth., 217 AD2d 269 [1996]; Torres, 177 AD2d 97 [1992]) is misplaced. The courts in those decisions held that maritime law ipso facto preempts Labor Law §§ 240(1) and 241(6). As Cammon rejected such an analysis, these decisions are no longer good law on this issue. Although the Appellate Division decided Emanuel v Sheridan Transp. Corp. (10 AD3d 46, 58-59 [2004]) after Cammon, the decision is factually distinguishable because it involved an action brought by an LHWCA employee against a vessel owner, and preemption was required not by general maritime law, but rather, by a specific provision of the LHWCA (see 33 USC § 905[b]; Lee, 13 NY3d at 392 [distinguishing an action against a vessel owner from one against a landowner or contractor like that at issue in Cammon]).
LHWCA AS EXCLUSIVE REMEDY
Nevertheless, GMD Shipyard argues that since it provided plaintiff insurance coverage under the LHWCA upon the failure of plaintiff's employer, Champion, to obtain LHWCA coverage, it is deemed plaintiff's employer under the LHWCA, and plaintiff's action against it is barred by the exclusive remedy provision of the LHWCA (33 USC §§ 904[a], 905[a]). The LHWCA provides workers' compensation benefits to certain "land-based maritime employees" (Stewart v Dutra Constr. Co., 543 US 481, 488 [2005]). Like New York's Workers' Compensation Law, the LHWCA provides that it is an employee's exclusive remedy against the employer where the employer has secured the required compensation for the employee (33 USC § 905[a]). In addition, the LHWCA also provides that the LHWCA will be the employee's exclusive remedy against a contractor if the contractor has obtained coverage where the subcontractor employer has failed to do so (33 USC §§ 904[a], 905[a]).
33 USC § 905(a) provides, in relevant part, that:
The liability of an employer prescribed in section 904 of this title shall be exclusive and in place of all other liability of such employer of the employee . . ., except that if an employer fails to secure payment of compensation as required by this chapter, an injured employee . . . may elect to . . . maintain an action at law or in admiralty for damages on account of such injury or death. . . . For purposes of this subsection, a contractor shall be deemed the employer of a subcontractor's employee only if the subcontractor fails to secure the payment of compensation as required by section 904 of this title.33 USC § 904(a) provides that:
Every employer shall be liable for and shall secure the payment to his employees of the compensation payable under §§ 907, 908, and 909 of this title. In the case of an employer who is a subcontractor, only if such subcontractor fails to secure the payment of compensation shall the contractor be liable for and required to secure the payment of compensation. A subcontractor shall not be deemed to have failed to secure the payment of compensation if the contractor has provided insurance for the such compensation for the benefit of the such subcontractor.
Plaintiff initially opposes GMD Shipyard's position by arguing that he is not an employee under the LHWCA. With the exception of certain exclusions discussed below, the LHWCA currently "requires both (1) that a worker be engaged in maritime employment' under § 902(3), and (2) that his or her injury occur on navigable waters or on one of the listed areas under § 903(a)" (Fleischmann v Director, Office of Workers' Comp. Programs, 137 F3d 131, 135 [2nd Cir 1998], cert denied 525 US 981 [1998]). The Supreme Court, however has emphasized that the "maritime employment" element of coverage under the LHWCA is generally met where the worker establishes that the accident occurred on navigable waters (see Director, Office of Workers' Comp. Programs, U.S. Dep't of Labor v Perini N. River Assocs., 459 US 297, 325 [1983][the Court noted that the maritime employment element was added as part of a 1972 amendment to the LHWCA and found that congress did not intend that the maritime employment component would apply to accidents that occurred on navigable waters and that would have been covered prior to the amendment]; Peru v Sharpshooter Spectrum Venture LLC, 493 F3d 1058, 1062-1063 [9th Cir 2007]; Fleischmann, 137 F3d at 135; McCarthy v The Bark Peking, 716 F2d 130, 132-133 [2d Cir 1983], cert denied 465 US 1078 [1984]). Since, as noted above, the accident occurred on navigable waters, and since Champion's employees "are employed in maritime employment" at least "in part, upon the navigable waters of the United States" (33 USC 902[4]), plaintiff is an employee generally covered by the LHWCA (see Perini N. River Assocs., 459 US at 325; McCarthy, 716 F2d at 132-133; Gretna Mach. & Ironworks, Inc. v Neuman, 446 F2d 550, 551-552 [5th Cir 1971]; Flowers v Travelers Ins. Co., 258 F2d 220, 221-224 [5th Cir 1958], cert denied 359 US 956 [1959]; see also Parker v Motor Boat Sales, 314 US 244, 246-247 [1941]). Finally, although not lengthy when considered in the context of his overall employment, the time plaintiff spent dismantling the scaffold was not so insignificant that he could be deemed only "transiently" or "fortuitously" present on the Chemical Pioneer - an apparent judicial limitation on coverage under the LHWCA (see Bienvenu v Texaco, Inc., 164 F3d 901, 907-909 [5th Cir 1999]).
33 USC § 902(3) states that:
The term "employee" means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor-worker including a ship repairman, shipbuilder, and ship-breaker, but such term does not include-
(A) individuals employed exclusively to perform office clerical, secretarial, security, or data processing work;eighteen tons net:
(B) individuals employed by a club, camp, recreational operation, restaurant, museum, or retail outlet;
(C) individuals employed by a marina and who are not engaged in construction, replacement, or expansion of such marina (except for routine maintenance);
(D) individuals who (i) are employed by suppliers, transporters, or vendors, (ii) are temporarily doing business on the premises of an employer described in paragraph (4), and (iii) are not engaged in work normally performed by employees of that employer under this chapter;
(E) aquaculture workers;
(F) individuals employed to build any recreational vessel under sixty-five feet in length,
or individuals employed to repair any recreational vessel, or to dismantle any part of arecreational vessel in connection with the repair of such vessel;
(G) a master or member of a crew of any vessel; or
(H) any person engaged by a master to load or unload or repair any small vessel under
if individuals described in clauses (A) through (F) are subject to coverage under a State workers' compensation law.33 USC § 902(4) states:
The term "employer" means an employer any of whose employees are employed in maritime employment in whole or in part, upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing or building a vessel).
Even if some further showing with respect to the maritime employment element was required, the fact that plaintiff and his employer primarily worked on land-based, non-maritime projects, and that his employment involved the erection of scaffolding no different from that used on these land-based projects, does not remove him from coverage under the LHWCA (Hullinghorst Industries, Inc. v Carroll, 650 F2d 760, 754-758 [5th Cir 1981], cert denied 454 US 1163 [1982]). Addressing a similar issue with respect to a worker killed while excavating a trench that would later be used for conduit and communication cables during a pier renovation project, the Court stated in Healy Tibbitts Builders, Inc. v Director, Office of Workers Compensation Programs (444 F3d 1095 [9th Cir 2006]), that:
Maumau [the decedent at issue] was directly involved in the renovation of berths designed for ships- in this case, submarines. Any other interpretation of the [LHWCA] would exclude coverage for most of the many trade workers who contribute to the building of a harbor or dock. Construction workers often have specific skills, and are typically responsible for only one part of the overall structure. If, as Petitioners [employers arguing non-coverage] contend, the test were whether the subcontractor's immediate work product had a maritime purpose in and of itself, few if any workers on a marine construction project would ever qualify for benefits. To put it another way, a maritime facility is simply the sum of its parts. (id. at 1101).
Here, it is similarly clear that the scaffolding erected and later removed by Champion was integral to GMD Shipyard's ability to perform its repairs on the Chemical Pioneer. As such, the fact that plaintiff was not actually performing the repair work on the ship is not grounds to exclude him from coverage under the LHWCA (see Hullinghorst Industries, Inc., 650 F2d at 754-758 [scaffolding subcontractor on pier renovation project is employee under the LHWCA]; see also Chesapeake & Ohio Railway v Schwalb, 493 US 40, 45 [1989]; Thompson v Georgia Pacific Corp., 993 F2d 1166, 1169 [5th Cir 1993][subcontractor's employee's erection of scaffolding integral to contractor's work for purposes of application of "statutory employer" rule]).
Plaintiff, however, asserts that his work falls under the exception contained in 33 USC 902(3)(D) for persons employed as "suppliers, venders and transporters." Although not defined in the statute, it is apparent from the every day meaning of the words used that the section was intended to exclude from coverage workers who are only temporarily present to deliver or sell items, equipment, supplies or services to maritime locations - perhaps as a legislative expression of the exception for workers who are only "transiently" or "fortuitously" present. Given the admonition that the exceptions to coverage under section 902(3)(A -E) are to be narrowly construed (HR Rep 570, 98th Cong, 2d Sess, at 4, reprinted in 1984 US Code Cong & Admin News, at 2734, 2738; Bienvenu, 164 F3d at 909), plaintiff's work in disassembling the scaffold does not fall within the exception.
Supplier is defined as "a company, organization or country that supplies or sells a product or a service" (Macmillan Dictionary, http://www.macmillandictionary.com/dictionary/ american/supplier/ [accessed Nov. 2, 2011]). Vendor is defined as "a company or person that sells a particular product or service" (Macmillan Dictionary, http://www.macmillandictionary. com/dictionary/american/vendor/ [accessed Nov. 2, 2011]). Transporter is defined as ":one that transports; especially : a vehicle for transporting large or heavy loads" (htt://www.merriam- webster.com/dictionary/transporter/ [accessed Nov. 3, 2011]). When its use of the word transporter is considered in context, it is apparent that section 902(3)(D) refers to a person or entity providing the transportation services, not the vehicle.
While in one sense Champion may be deemed to be acting as a "supplier" by providing scaffolding for the project, it did much more than merely provide preassembled scaffold to by used GMD Shipyard. Rather, Champion had to assemble and disassemble the scaffolding at various locations on the ship, and thus acted more like a construction company or contractor than a supplier. This view of the work of Champion and plaintiff is borne out, at least in part by plaintiff's job title, journeyman carpenter, and plaintiff's work appears to be much more extensive than the cell phone installation/customer relations work on the behalf of a cellular communications company found to fall under the exception by the United States Court of Appeals for the Fifth Circuit (see Daul v Petroleum Communications, Inc., 196 F3d 611, 612-613 [5th Cir 1999]; cf. Ripley v Century Concrete Services, 22 BRBS 336, 1990 WL 284083 [DOL Ben.Rev.Bd. 1990][carpenter employed to fashion forms for concrete subcontractor on pier construction project not a supplier, transporter or vender]).
Although it would appear that a supplier, transporter or vender could still fall under the exception even if they perform some assembly or set-up of their product or item supplied, as the amount of assembly or set-up work increases the supplier, transporter or vender, at some point in the continuum, becomes a contractor or constructor, or mechanic.
In any event, plaintiff's scaffolding work, even if only his three and one half hours of work on the day of the accident is considered, was sufficiently involved that he may not be considered only temporarily present for purposes of 33 USC § 902(3)(D). Further, a finding that plaintiff was only temporarily present would serve as an incentive for contractors who perform both maritime and land-based work to try to avoid the need for LHWCA coverage by rotating workers from the land-based projects to the maritime projects in the hope that the worker will be deemed only temporarily present.
Perhaps more importantly, plaintiff's work in taking apart the scaffold is certainly the kind of work that could have been performed by employees of GMD Shipyard (Hullinghorst Industries, Inc., 650 F2d at 756-757 [scaffold work could be performed by typical harborworker]). As such, plaintiff's work does not qualify for the exception, since the exception only applies when the employee is "not engaged in work normally performed by employees of that employer under this chapter" (33 USC 902[3][D][iii]). Any other finding would create the risk that employers would simply subcontract out work such as that performed by plaintiff in order to avoid coverage under the LHWCA - the specific concern underlying Congress' inclusion of section 902(3)(D)(iii) proviso to the exception (HR Rep 570, 98th Cong, 2d Sess, at 4, reprinted in 1984 US Code Cong & Admin News, at 2734, 2738; Ripley, 22 BRBS 336, 1990 WL 284083). Plaintiff thus does not fall under section 902(3)(D)'s exception to coverage, and is a employee covered under the LHWCA.
The employer in this sentence is the maritime employer on whose premises the "supplier, transporter or vendor" is temporarily present.
It is undisputed that the workers' compensation coverage obtained by Champion only provides for New York workers' compensation benefits, and specifically excludes coverage under the LHWCA. It is further undisputed that GMD Shipyard's policy with National Union provides coverage for LHWCA employees. Plaintiff, however, argues that GMD Shipyard cannot be deemed his employer under 33 USC §§ 904(a) and 905(a) because National Union, GMD Shipyard's LHWCA carrier, informed the OWCP that it was controverting plaintiff's right to LHWCA compensation. Contrary to plaintiff's assertion, GMD Shipyard satisfied its obligation to obtain coverage by obtaining insurance providing for LHWCA coverage (see Sumner v FCE Indus., 308 AD2d 440 , 441 [2003], affirming Sup Ct, Kings County, June 10, 2002, R. Rivera, J., Index No. 2839/00; Martin v Halliburton, ___ F Supp2d ___, 2011 WL 3925404 at 5 [SD Tex 2011]; Makris v Spensieri Painting, LLC, 669 F Supp2d 201, 207 [D Puerto Rico 2009]; Sochacki v The United States of America, US Dist Ct, ED NY, 99 Civ 8008, Korman, C.J., Feb. 5, 2003; 33 USC § 932). National Union's exercise of its right to administratively challenge the application of the LHWCA to plaintiff's accident does not alter the fact that GMD Shipyard has satisfied its obligations under the act (see Sochacki v The United States of America, US Dist Ct, ED NY, 99 Civ 8008, Korman, C.J., Feb. 5, 2003) or estop GMD Shipyard from relying on the exclusive remedy provisions of 33 USC § 905(a) (id.). Accordingly, since GMD Shipyard is deemed plaintiff's employer and the exclusive remedy provision of section 905(a) bars this action as against GMD Shipyard, plaintiff's motion is denied as against GMD Shipyard.
If plaintiff's withdrawal of his LHWCA claim is deemed to have been made without prejudice, it would appear that he may be able to resubmit his claim, since the pendency of this action acts as a toll on plaintiff's time to submit an LHWCA claim (see 33 USC § 913[d]; Bath Iron Works Corp. v Director, Office of Workers' Compensation Programs, 125 F3d 18, 23 [1st Cir 1998]; Quaker City Contracting Co. v Norton, 26 F Supp 258 [E.D.Pa. 1938], affd 101 F2d 1017 [3d Cir 1939]).
LABOR LAW §§ 200, 240(1) and 241(6) - OWNERS
The Shipyard Defendant's submit that BNYDC and GMD Enterprises may not be deemed owners under the Labor Law because they are intermediate lessees who did not contract for the work or have the authority to supervise or control it, and that the City, although concededly a fee owner of the Navy Yard, may not be deemed an owner because it leased the Navy Yard to other entities, did not contract for the work, did not exercise supervision and control over it, and did not have any connection to the structure being worked on.
The Court of Appeals has held that a fee owner is an owner for purposes of Labor Law § 240(1) liability even if it has leased it property to another entity, and even if it did not contract for the work or supervise or control the work (see Sanatass v Consolidated Inv. Co., Inc., 10 NY3d 333, 340-341 [2008]; Coleman v City of New York, 91 NY2d 821, 823 [1997]; Gordon v Eastern Ry. Supply, 82 NY2d 555, 560 [1993]; Wong v City of New York, 65 AD3d 1000, 1001 [2009]). While a lessee may be deemed an owner if the lessee contracts for the work at issue or otherwise has authority to control the work may be deemed an owner (see Zaher v Shopwell, Inc., 18 AD3d 339, 339-340 [2005]), a lessee that does not so contract or otherwise have authority to supervise or control the work, is not an owner or agent under Labor Law § 200, 240(1) or 241(6) (see Ferluckaj v Goldman Sachs & Co., 12 NY3d 316, 320 [2009][emphasizing that lessees are not mentioned in the Labor Law]; Guclu v 900 Eight Ave. Condominium, LLC, 81 AD3d 592, 593 [2011]).
Here, as discussed above, the undisputed facts in the record show that the City is the fee owner of the Navy Yard, and leases the entirety of the Navy Yard to the BNYDC, which leases the relevant shipyard portion of the yard to GMD Enterprises. GMD Shipyard contracted with the owner or entity in control of the Chemical Pioneer to perform the repair work at issue, and subcontracted with plaintiff's employer to perform the scaffolding work. The accident itself occurred in the hold of the Chemical Pioneer. At his deposition, McCormack, one of GMD Shipyard's witness, testified that, although GMD Shipyard informed Champion where to set up the scaffolding, and let Champion know which scaffolding was ready to be removed when the work was completed, Champion was responsible for directing its own employees. Phalen, Champion's supervisor, likewise conceded that Champion instructed its employees with respect how to erect the scaffolding. It is undisputed, however, that GMD Shipyard retained responsibility for covering the limber hole at issue.
The evidence submitted by plaintiff shows that BNYDC was a lessee that did not contract for the work and none of the evidence suggests that BNYDC had any authority to supervise or control the work. Plaintiff, however, asserts that certain provisions of BNYDC's lease with GMD Enterprises requiring GMD Enterprises to use its best efforts to create employment opportunities (BNYDC-GMD Lease § 3.01), requiring GMD Enterprises to perform repairs of the premises and allowing BNYDC to enter the premises (BNYDC-GMD Lease Article 7, and §13.01) and comply with New York law (BNYDC-GMD Lease § 8.01), demonstrate BNYDC's control over the work. These general provision, primarily directed at the conditions on the premises, and not the work performed by GMD Shipyard, are insufficient to impose liability under the Labor Law (see Linkowski v City of New York, 33 AD3d 971, 975 [2006]; Damiani v Federated Dept. Stores, Inc., 23 AD3d 329, 332 [2005]; Gould v City of New York, Sup Ct, Kings County, August 10, 2010, Bayne, J., index No. 33476/08 [rejecting similar arguments made with respect to the same lease at issue here]; cf. Walls v Turner Constr. Co., 4 NY3d 861 [2005]). With respect to GMD Enterprises, none of the evidence submitted by plaintiff addresses its role. Accordingly, plaintiff has failed to demonstrate, prima facie, that BNYDC and GMD Enterprises are owners or agents for purposes of Labor Law §§ 200, 240(1) and 241(6) (Ferluckaj, 12 NY3d at 320; Guclu, 81 AD3d at 593; Wong, 65 AD3d at 1001; Summer, 308 AD2d at 441 [found that BNYDC could not be held liable as an out-of-possession sublandlord]; Crespo v Triad, Inc., 294 AD2d 145, 147 [2002]; Imling v Port Auth. of NY & N.J., 289 AD2d 104, 104-105 [2001], lv denied 97 NY2d 613 [2002]; Kotlewski v Brooklyn Navy Yard Dev. Corp., Sup Ct, Kings County, Dec. 24, 2002, Bruno, J., index No. 34122/99 [found that GMD Enterprises was an out-of-possession landlord that did not supervise or control the work at the Navy Yard]; but see Zaher, 18 AD3d at 340; Bart v Universal Pictures, 277 AD2d 4, 5-6 [2000]).
As discussed below, Cranston, GMD Enterprises president, submitted an affidavit in which he asserts that GMD Enterprises only serves as a lease holder, that it subleases the shipyard area to GMD Shipyard, and that it does not supervise or control GMD Shipyard's work.
On the other hand, the City, as fee owner of the Navy Yard, is treated differently. Contrary to the City's position, the Court of Appeals has expressly rejected the arguments raised by the City and held that a fee owner is an owner for purposes of Labor Law § 240(1) liability even if it has leased it property to another entity, and even if it did not contract for the work or supervise or control the work (see Sanatass, 10 NY3d at 340-341; Coleman, 91 NY2d at 823; Gordon, 82 NY2d at 560; Wong, 65 AD3d at 1001). In addition, the fact that the City did not own the Chemical Pioneer, the structure being worked on, does not remove the City from coverage of the Labor Law (see Gordon, 82 NY2d at 560; Hutchins v Finch, Pruyn & Co., Inc., 267 AD2d 809, 810-811 [1999], lv denied 94 NY2d 762 [2006]; Caban v House of Pizza & Calzone, 23 Misc 3d 1136 [A], 2009 NY Slip Op 51151 [U] [Sup Ct, Kings County 2009]). Accordingly, in light of the City's admission that it is a fee owner that leased the Navy Yard to the BNYDC, plaintiff has demonstrated, prima facie, that the City is an owner under Labor Law § 240(1).
LABOR LAW § 240(1)As an owner, the City's liability turns on whether plaintiff has established, prima facie, the other elements of liability under Labor Law § 240(1). Section 240(1) imposes absolute liability on owners and contractors or their agents when their failure to provide proper protection to workers employed on a construction site' proximately causes injury to a worker (see Wilinski v 334 East 92nd Housing Dev. Fund Corp., ___ NY3d ___, 2011 NY Slip Op 07477 [2011] [quoting Misseritti v Mark IV Constr. Co., 86 NY2d 487, 490 [1995]).
Here, there is no real dispute that plaintiff's work in dismantling the scaffold as part of the larger ship repair project is of the kind work covered under Labor Law § 240 (see Aguilar v Henry Mar. Serv., Inc., 12 AD3d 542, 543-544 [2004]; see also Prats v Port Auth. of NY & N.J., 100 NY2d 878, 881[2003]; Lombardi v Stout, 80 NY2d 290, 295-296 [1992]). Although the record contains conflicting testimony relating to how far plaintiff could have fallen if he hadn't caught his arms on the edge of the hole, plaintiff, under the circumstances here, was faced with a sufficient elevation differential to implicate the protections of Labor Law § 240(1) even if the floor below was only three feet below the level on which plaintiff was working (see Swiderska v New York Univ., 10 NY3d 792, 793 [2008], reversing 34 AD3d 445 [plaintiff fell from a height of three feet]; Auriemma v Biltmore Theatre, LLC, 82 AD3d 1, 9 [2011][four foot fall]; Salazar v Novalex Contr. Corp., 72 AD3d 418, 420-422 [2010][four foot fall; the court distinguished falls from flatbed trucks], reversed on other grounds ___ NY3d ___, 2011 NY Slip Op 08446 [2011][section 240 inapplicable because protective device would have been incompatible with work being performed]; Mann v Meridian Ctr. Assoc., LLC, 17 AD3d 1143, 1144-1145 [2005][three foot fall], lv deismissed 5 NY3d 824 [2005]; Barber v Kennedy Gen Contrs., 302 AD2d 718, 720 [3 ½ foot fall]; Amo v Little Rapids Corp., 268 AD2d 712, 717-718 [2000][3 ½ foot fall would be covered]; Carpio v Tishman Constr. Corp. of NY, 240 AD2d 234, 236 [2000][three foot deep hole]). As the hole was big enough for plaintiff to fall into (see O'Connor v Lincoln Metrocenter Partners, 266 AD2d 60, 61 [1999]; cf. Avila v Plaza Constr. Corp., 73 AD3d 670, 671 [2010][no elevation hazard presented under section 240(1) where the hole was too small for plaintiff to fall through], lv granted 15 NY3d 706 [2010], appeal withdrawn 15 NY3d 918 [2010]), and the evidence shows that the accident was caused, at least in part, by the failure properly secure the plywood cover over the hole, plaintiff has demonstrated, prima facie, that a violation of section 240(1) was a proximate cause of plaintiff's accident (see e.g. Valensisi v Greens at Half Hollow, 33 AD3d 693, 695 [2006]; O'Connor, 266 AD2d at 61; Carpio, 240 AD2d at 235-236; Robertti v Chang, 227 AD2d 542, 543[1996], lv dismissed 88 NY2d 1064 [1996]). The fact that plaintiff did not fall all the way to the level below does not remove this case from the coverage of section 240(1) (see Abreo v URS Greiner Woodward Clyde, 60 AD3d 878, 880 [2009]; Cordero v Kaiser Org., 288 AD2d 424, 425 [2001]; O'Connor, 266 AD2d at 61; Robertti, 227 AD2d at 543).
Plaintiff did not address the issue in his affidavit or his deposition testimony. At his deposition, the McCormick, the project manager, testified that the limber hole at issue led to the outer shell or hull of the ship, which was approximately three feet below the deck on which plaintiff was walking. Nugent, GMD Shipyard's safety manager, who investigated the accident, and who took photographs of the hole and the plywood covering he believed to be at issue, noted that the photographs showed that the hole led to another compartment with a deck or floor 10 to 20 feet below the deck on which plaintiff was working, while Phalen, Champion's supervisor, asserted that the drop was 10 to 12 feet.
In opposing plaintiff's motion, the City raises no argument that plaintiff has failed to demonstrate that the accident is covered by Labor Law § 240(1) or that a violation of that section was a proximate cause of his accident. Nor has the City submitted evidence raising an issue of fact in this regard. In the absence of any factual issues, plaintiff is entitled to partial summary judgment with respect to liability with respect to his Labor Law § 240(1) claim as against the City.
LABOR LAW § 241(6)Under Labor Law § 241(6), an owner or contractor may be held vicariously liable for injuries to a plaintiff where the plaintiff establishes that the accident was proximately caused by a violation of an Industrial Code section stating a specific positive command that is applicable to the facts of the case (see Rizzuto v L.A. Wenger Contr. Co., Inc., 91 NY2d 343, 349-350 [1998]). Here, plaintiff relies on 12 NYCRR 23-1.7(b)(i), which is sufficiently specific to support a cause of action under section 241(6) (see Barillaro v Beechwwod RB Shorehaven, LLC, 69 AD3d 543, 544 [2010]), and, which appears to be applicable to the facts, since the hole at issue was big enough for plaintiff to fall into and of significant depth (see Salazar, 72 AD3d at 422-423, reversed on other grounds ___ NY3d ___, 2011 NY Slip Op 08446 [2011][section 241(6) inapplicable were covering hole would have been incompatible with job, which involved filling the hole]; Olsen, 16 AD3d at 171; Wells v British American Dev. Corp., 2 AD3d 1141, 1144 [2003]; cf. Barillaro, 69 AD3d at 544). In addition, GMD Shipyard's safety expert essentially conceded that the cover was inadequate.
Nevertheless, plaintiff is not entitled to summary judgment on his section 241(6) claim. In this respect, comparative fault is a defense to section 241(6) (Rizzuto, 91 NY2d at 350). Here, the testimony regarding the lighting conditions and whether the hole covers were readily observable is sufficient to raise an issue with respect to whether plaintiff should have exercised better care to avoid stepping on the cover. Accordingly, plaintiff's failure to demonstrate the absence of comparative fault on his part requires denial of his summary judgment motion (see Riffo-Velozo v Village of Scarsdale, 68 AD3d 839, 842 [2009]; Wells, 2 AD3d at 1144; Drago v New York City Tr. Auth., 227 AD2d 372, 373 [1996]; see also Roman v A1 Limousine, Inc., 76 AD3d 552, 552-553 [2010]). Even if knowledge of the hole's location is insufficient to demonstrate a factual issue with respect to plaintiff's comparative fault, plaintiff's motion with relating to section 241(6) would have to be denied. Namely, partial summary judgment in favor of plaintiff is generally inappropriate in a Labor Law § 241(6) case because violation of an Industrial Code rule only constitutes some evidence of negligence, and the question of whether the equipment, operation or conduct at the worksite was reasonable is reserved for the jury (see Seaman v Bellmore Fire Dist., 59 AD3d 515, 516 [2009]; Copp v City of Elmira, 31 AD3d 899, 900 [2006]; Szaffranski v Niagra Frontier Transp. Auth., 5 AD3d 1111, 1113 [2004]; see also Misicki v Caradonna, 12 NY3d 511, 521 [2009]). LABOR LAW § 200
Turning to plaintiffs' Labor Law § 200 claim, the complaint does not allege a cause of action premised on section 200, and plaintiffs could not properly add such a claim, as they have attempted to do here, by alleging it in the bill of particulars (see Fusca v A & S Constr., LLC, 84 AD3d 1155 [2011]; Castleton v Broadway Mall Props., Inc., 41 AD3d 410, 411 [2007]). Nevertheless, as the City has not objected to the addition of the claim by way of the bill of particulars, and, as the parties could stipulate to an amended complaint alleging a Labor Law § 200 cause of action, the section 200 claim will be addressed "as if the complaint had been de facto amended" (Sebring v Wheatfield Props. Co., 255 AD2d 927, 928 [1998]; Napoli v Wright, 2003 WL 25669387 [Sup Ct Queens County 2003], affd 21 AD3d 1071 [2005]). Since plaintiffs complaint alleged that defendants were liable under common-law negligence principles, and since Labor Law § 200 merely codifies common-law duties (see Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 [1993]), the City cannot be prejudiced by addressing the merits of the section 200 claim.
A cause of action premised on Labor Law § 200 may arise from a dangerous or defective premises condition upon a showing that the owner or general contractor created or had actual or constructive notice of the dangerous condition (see Harsch v City of New York, 78 AD3d 781, 783 [2010]; Ortega v Pucia, 57 AD3d 54, 61 [2008]). Where the accident is caused by the methods or materials of the work, however, the owner and general contractor may only be held liable if they are charged with the authority to supervise or control the work (see Pilato v 866 U.N. Plaza Associates, LLC, 77 AD3d 644, 646 [2010]; Ortega, 57 AD3d at 61).
Here, the accident was caused by the methods or materials of the work, as the hole was located on the Chemical Pioneer, which is concededly not owned by the City, and which is not part of the Navy Yard premises. Moreover, since the hole was readily apparent, was safe for its intended purpose of allowing the liquid loads to transfer throughout the larger tank, and had no cover that was part of the ships equipment, the failure to properly cover the hole relates to GMD Shipyard's method of performing the work rather than a dangerous or defective property condition (see Gasper v Ford Motor Co., 13 NY2d 104, 110-111 [1963]). As the plaintiff has submitted no evidence that the City had the authority to supervise or control the work at issue, plaintiff has failed to demonstrate his prima facie entitlement to summary judgment with respect to his Labor Law § 200 claim. Moreover, even if the accident is deemed to have arisen from a dangerous premises condition, plaintiff has submitted no evidence that the City had actual or constructive notice of any defect with the hole's cover. FCE INDUSTRIES
Plaintiffs, at page eight of their reply memorandum of law, state that FCE Industries is in default. Since FCE Industries has not joined issue, plaintiffs may not obtain summary judgment against it (CPLR 3212 [a]). Indeed, if (as it appears from the court's computer records) plaintiffs have failed to move for a default judgment as against FCE Industries, this court may be required to dismiss the action as against FCE Industries (CPLR 3215[c]). SHIPYARD DEFENDANTS' MOTION - MAIN ACTION
GMD SHIPYARD
In a prior decision related to the same shipyard, the evidence in the record showed that FCE Industries was a corporate entity that did business under the name GMD Shipyard (Kotlewski v Brooklyn Navy Yard Dev. Corp., Sup Ct, Kings County, March 1, 2002, Bruno, J., index No. 34122/99). In decision involving a later action against GMD Shipyard, the parties represented that FCE Industries was no longer in existence (Vasquez, 2008 WL 4224396, at 1 n1).
Turning to the Shipyard Defendants' cross-motion, GMD Shipyard - through the evidence (discussed above with respect to plaintiffs' motion) that plaintiff is deemed an employee under the LHWCA, that Champion failed to provide compensation under the LHWCA, and that GMD Shipyard's obtained insurance providing coverage under the LHWCA - has made a prima facie showing that it must be considered plaintiff's employer under the LHWCA, and that the action against it is barred by the exclusive remedy provisions of the LHWCA (33 USC 904[a], 905[a]). Since plaintiff has failed to submit evidence demonstrating the existence of a factual issue with respect to the application of the LHWCA's exclusive remedy bar, the portion of the Shipyard Defendants' cross-motion with respect to GMD Shipyard is granted, and the complaint is dismissed as against GMD Shipyard.
BNYDC and GMD ENTERPRISES
As a preliminary matter with respect to the portion of the Shipyard Defendants' motion relating to the BNYDC and GMD Enterprises, plaintiff asserts that BNYDC and GMD Enterprises cannot meet their initial summary judgment burdens because they rely on an affidavit by Michael Cranston, the president of GMD Enterprises and GMD Shipyard, and an affidavit by Martin Banker, currently a vice president and deputy general counsel of BNYDC, both of whom plaintiffs contend were not disclosed as witnesses during the course of discovery. In their affidavits, Cranstan and Banker address GMD Enterprises and BNYDC's corporate relationships with the other entities involved in this action, and provide a foundation for corporate documents (insurance policies and leases) submitted in opposition to plaintiffs' motion and in support of the Shipyard Defendants' cross-motion. Although their names technically should have been provided in response to the plaintiffs' broad discovery requests and the preliminary conference order, which did not limit witness disclosure to witnesses to the incident, notice witnesses or expert witnesses, plaintiffs should have been aware that Cranston and Banker were likely witnesses relating to the corporate relations of GMD Enterprises and BNYDC in light of their roles in the respective corporate structures of both entities. Moreover, contrary to plaintiffs' contentions, plaintiffs had actual notice that GMD Enterprises and BNYDC intended to use Cranstan and Banker as witnesses before the filing of the note of issue. Namely, the affidavits at issue were submitted in support of the Shipyard Defendants' original cross-motion for summary judgment, and were served on plaintiffs at least three weeks before the note of issue was filed on February 14, 2011. Given this pre-note of issue notice relating to Cranstan and Banker, plaintiffs are not so prejudiced by the Shipyard Defendants' failure to formally name Cranstan and Banker in response to plaintiffs' discovery requests that their affidavits may not be considered here (see Pearson v City of New York, 74 AD3d 1160, 1161 [2010]; Rossal-Daub v Walter, 58 AD3d 992, 994 [2009]).
It would also appear that barring consideration of the affidavits is also inappropriate given that the generic corporate relationship evidence here could probably have been provided by several different witnesses employed by defendants, and the record shows that plaintiffs made no effort to pursue such evidence during the course of discovery, despite the fact that plaintiffs had notice of the defenses at issue from the answer and the representations made by counsel for the Shipyard Defendants.
With the affidavit from Banker, BNYDC has demonstrated, prima facie, that it is not an owner or agent for purposes of Labor Law §§ 200, 240(1) and 241(6). In this respect, it is already undisputed that BNYDC is a lessee of the Navy Yard and that it did not contract for the ship repair work at issue. As discussed above with respect to plaintiffs' motion, the deposition testimony shows that the work was supervised by GMD Shipyard, and Champion and that it was GMD Shipyard that assumed the responsibility to cover the hole at issue. Banker's affidavit, in which he reiterates that BNYDC did not own the Navy Yard, that BNYDC did not contract for the work at issue, and that BNYDC did not have authority to supervise or control the work, merely makes explicit what was already evident from the other evidence in the record, namely, that BNYDC is not an owner, and that it may not be deemed an owner or agent because it did not contract for the work at issue and did not have the authority to supervise or control the injury producing work (Ferluckaj, 12 NY3d at 320; Guclu, 81 AD3d at 593; Wong, 65 AD3d at 1001; Summer, 308 AD2d at 441 [found that BNYDC could not be held liable as an out-of-possession sublandlord]; Crespo, 294 AD2d at 147; Imling, 289 AD2d at 104). As discussed above, contrary to plaintiff's arguments, the provisions of BNYDC's lease with GMD Enterprises fail to demonstrate the existence of a factual issue warranting denial of the motion relating to the Labor Law causes of action (see Linkowski, 33 AD3d at 975; Damiani, 23 AD3d at 332; Gould v City of New York, Sup Ct, Kings County, August 10, 2010, Bayne, J., index No. 33476/08 [rejecting similar arguments made with respect to the same lease at issue here]).
Although the GMD Enterprises' role at the Navy Yard is not entirely clear from the deposition testimony and other evidence in the record, GMD Enterprises is undisputedly not the fee owner, since it is conceded that the City is the fee owner of the Navy Yard, GMD Enterprises did not contract for the work at issue, since it was GMD Shipyard that contracted for the work, and it did not supervise or control the work at issue, since the deposition testimony shows that it was GMD Shipyard and Champion that supervised the work on the Chemical Pioneer. Cranston, in his affidavit, states that GMD Enterprises leases the shipyard facilities at issue from BNYDC and that, in turn, it leases these facilities to GMD Shipyard, pursuant to "an informal, non-written agreement." Cranston, further asserts that GMD Enterprises is not involved in the operation of the shipyard, and that it does not control or have authority to control GMD Shipyard's work or job site safety. Through this evidence, GMD Enterprises has likewise demonstrated, prima facie, that it is not an owner or agent for purposes of Labor Law §§ 200, 240(1), and 241(6) (Ferluckaj, 12 NY3d at 320; Guclu, 81 AD3d at 593; Wong, 65 AD3d at 1001; Summer, 308 AD2d at 441; Crespo, 294 AD2d at 147; Imling, 289 AD2d at 104; Kotlewski v Brooklyn Navy Yard Dev. Corp., Sup Ct, Kings County, Dec. 24, 2002, Bruno, J., index No. 34122/99 [found that GMD Enterprises was an out-of-possession landlord that did not supervise or control the work at the Navy Yard]).
Plaintiffs' primary argument in opposition to the portion of the cross-motion relating to GMD Enterprises is that GMD Enterprises and GMD Shipyard are closely related entities controlled by the same corporate officer, and, as such, GMD Enterprises should be deemed to control GMD Shipyard's work. The fact that GMD Enterprises and GMD Shipyard share officers, however, does not establish, in an of itself, authority to supervise and control, just as common ownership, in and of itself, does not establish that distinct corporations should be considered a single entity (see Etex Apparel, Inc., v Tractor International Corp., 83 AD3d 587, 587-588 [2011]; Figueiredo v New Palace Painters Supply Co., Inc., 39 AD3d 363, 364 [2007]; Billman v CLF Mgt., 19 AD3d 346, 347 [2005]; see also Buchner v Pines Hotel, Inc., 87 AD2d 691 [1982], affd 58 NY2d 1019 [1983]). As plaintiff has submitted no evidentiary proof demonstrating the existence of an issue of fact with regard to GMD Enterprises authority to supervise and control GMD Shipyard's work, GMD Enterprises is entitled to dismissal of the Labor Law § 200, 240(1), and 241(6) causes of action.
Assuming, arguendo, that the evidence showed that GMD Enterprises and GMD Shipyard should be treated as a single entity, it would appear that GMD Enterprises would also be deemed plaintiff's employer and be able to take advantage of the exclusive remedy bar under the LHWCA (see Heavin v Mobil Oil Exploration and Producing Southeast, Inc., 913 F2d 178 [5th Cir 1990]; Vasquez, 2008 WL 4224396, at 1 n4; Claudio v United States of America, 907 F Supp 581, 586-589 [EDNY 1995]).
Under the facts here, the BNYDC and GMD Enterprises' showing that they did not supervise or control the work and that they did not have the authority do so, likewise establishes, their prima facie entitlement to dismissal of plaintiffs' common-law negligence cause of action and general maritime negligence cause of action (see Wong, 65 AD3d at 1001; In re Great Lakes Dredge & Dock Co., LLC, 624 F3d 201, 211 [5th Cir 2010][a general maritime negligence claim is essentially the same as a land-based negligence claim under the common law]). In the absence of factual issues in this regard, BNYDC and GMD Enterprises are entitled to summary judgment dismissing the common-law cause of action.
Since Labor Law § 200 merely codifies common-law duties (see Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 [1993]), and since the Shipyard Defendants have made specific arguments relating to the applicability of section 200, their failure to do so with respect to plaintiffs' common-law claims is immaterial (see CPLR 2001; see also Portillo v Roby Anne Dev., LLC, 32 AD3d 421, 422-423 [2006]).
THE CITY
The portion of the Shipyard Defendants' motion requesting dismissal of the Labor Law § 240(1) and 241(6) causes of action as against the City must be denied for the reasons stated in the discussion above with respect to plaintiffs' motion. On the other hand, the City has demonstrated its prima facie entitlement to dismissal of the Labor Law § 200 and common-law negligent claims through the record evidence showing that it did not contract for the ship repair work at issue and the deposition testimony showing that the work was supervised by GMD Shipyard, and Champion and that it was GMD Shipyard that assumed the responsibility to cover the hole at issue. Although the City retains the right to reenter and other authority over the Navy Yard in its lease with BNYDC, the lease is silent with respect to work performed by sub-lessees and nothing in the lease otherwise suggests that the City retained anything more than the general authority found insufficient to impose liability with respect to Labor Law § 200 and common-law negligence claims (see Harrison v State of New York, 88 AD3d 951 [2011]; La Veglia v St. Francis Hosp., 78 AD3d 1123, 1125 [2010]; Gould v City of New York, Sup Ct, Kings County, August 10, 2010, Bayne, J., index No. 33476/08). As plaintiff has failed to submit any evidence raising an issue of fact, the City is entitled to summary judgment dismissing the Labor Law § 200, common-law negligence and general maritime negligence claims as against it.
Of note, the City only argued that the section 241(6) claim was preempted by maritime law and that it should not be deemed an owner for purposes of section 241(6) under the facts here. The City made no argument with respect to the Industrial Code sections relied upon by plaintiff.
As this testimony is sufficient to establish who supervised or controlled the work at issues, the City was able to meet its initial burden even though it did not submit an affidavit from its own employee. In this respect, it is worth noting that the initial summary judgment burden does not require the moving party to "specifically disprove every remotely possible state of facts on which its opponent might win the case" (see Ferluckaj, 12 NY3d at 320).
THIRD-PARTY ACTION - UNDISPUTED FACTS
As noted above, the third-party complaint alleges causes of action on the behalf of all of the Shipyard Defendants for contribution and common-law indemnification and alleges causes of action on the behalf of GMD Shipyard for contractual indemnification and breach of the insurance procurement provisions of their contact. With respect to the contractual claims, it is undisputed that they arise out of insurance requirement agreement and indemnification agreement executed by GMD Shipyard and Champion in April 2008. Of note, in this respect, although the parties have not supplied the specific work order relating to Champion's scaffolding work on the Chemical Pioneer, Champion concedes that the April 2008 indemnification and insurance agreements apply to Champion's work on the Chemical Pioneer at issue in this action. As is relevant here, the insurance agreement required Champion to obtain commercial general liability/ship repairers legal liability coverage with policy limits of $1,000,000 and that GMD Shipyard was to be named as an additional insured under the policy. The indemnity provision provided, in relevant part, that:
COMPANY [GMD Shipyard] AND CONTRACTOR [Champion] EACH AGREE TO DEFEND, INDEMNIFY AND HOLD THE OTHER HARMLESS FROM AND AGAINST ANY AND ALL LIABILITY DAMAGE, CLAIMS OR COSTS (INCLUDING LEGAL COSTS AND EXPENSES) IN RESPECT OF SICKNESS, INJURY TO AND DEATH OF THEIR RESPECTIVE EMPLOYEES REGARDLESS OF THE NEGLIGENCE OR BREACH OF DUTY OF THE OTHER. AS USED HEREIN, THE TERM "NEGLIGENCE OR BREACH OF DUTY" SHALL INCLUDE THE SOLE AND/OR CONCURRENT NEGLIGENCE OR FAULT OF EITHER COMPANY OR CONTRACTOR, EITHER ACTIVE OR PASSIVE, MANIFEST OR LATENT DEFECTS ON EQUIPMENT OR FACILITIES OR UNSEAWORTHINESS OF VESSELS AND/OR ANY THEORY OF STRICT LIABILITY RELATING TO EQUIPMENT OR FACILITIES OR VESSELS OF EITHER PARTY UNDER ANY CODE, LAW OR REGULATION, BREACH OF REPRESENTATION OF EXPRESS OR IMPLIED WARRANTY, AND/OR OTHER THEORY OF TORT, BRANCH OF CONTRACT OR STRICT LIABILITY, WHETHER OR NOT SUCH PREEXISTS THIS AGREEMENT.
CHAMPION'S MOTION
Turning first to the portion of Champion's motion requesting dismissal of GMD Shipyard's contractual indemnification claim, Champion alleges that GMD Shipyard cannot recover contractual indemnification because the indemnification provision here allows recovery for GMD Shipyard's own negligence in violation of General Obligations Law § 5-322.1, and because GMD Shipyard cannot establish that its negligence was not a proximate cause of plaintiff's injury (see Itri Brick & Concrete Corp. v Aetna Cas. & Sur. Co., 89 NY2d 786, 794-796 [1997]). While Champion correctly states New York law, GMD Shipyard contends that the indemnification agreement is governed by maritime law, that maritime law allows a party to be indemnified for its own negligence and that maritime law preempts General Obligations Law § 5-322.1.
The portion of Champion's motion requesting dismissal of the contractual indemnification and insurance procurement claims by the City, BNYDC, and GMD Enterprises is academic, as the amended third-party complaint only alleges such causes of action with respect to GMD Shipyard.
The issue of preemption is only reached because Federal maritime law allows a party to enter into a contract providing for indemnification for its own negligence as long as the indemnification provision clearly and unequivocally expresses an intent to allow a party to recover for its own negligence (see Johnson v Seacor Marine Corp., 404 F3d 871, 877 [5th Cir 2005]; Theriot v Bay Drilling Corp., 783 F2d 527, 540 [5th Cir 1986]). Here, the contract clearly and unequivocally provides that GMD Shipyard can obtain indemnification for its own negligence with respect to claims by Champion's employees in language that has been held to require such indemnification (see Theriot, 783 F2d at 540; cf. Corbitt v Diamond M. Drilling Corp., 654 F2d 329, 332 [5th Cir 1981][addressed standard indemnification language that contained no statement regarding a party's own negligence]). In addition, in contrast to the preemption rules involving general maritime tort jurisdiction - where a state's interest in protecting its workers under state tort law may override federal interests in uniformity of law (see Cammon, 95 NY2d at 590), federal maritime law governs maritime contracts and preempts application of state law because, in maritime contract cases, the interest in protecting marine commerce through a uniform application of the law trumps local concerns (see Norfolk S. Ry. Co. v James N. Kirby, Pty Ltd., 543 US 14, 22-24 [2004]; Folksamerica Reinsurance Co. v Clean Water of New York, Inc., 413 F3d 307, 311 [2d Cir 2005]; Corbitt, 654 F2d at 332).
Whether GMD Shipyard may rely on this indemnification provision turns on whether its contract with Champion is deemed a maritime contract. In determining whether a contract is maritime, a court conducts a case-by-case analysis, keeping in mind past precedent relating to certain common contracts (see Folksamerica Reinsurance Co., 413 F3d at 311-312). The ultimate "answer depends upon . . . the nature and character of the contract, and the true criterion is whether it has reference to maritime service or maritime transactions" (Norfolk S. Ry. Co., 543 US at 24 [internal quotations omitted]). In conducting this analysis here, the indemnification provision must be considered in conjunction with the work order for the erection of the scaffolding in the Chemical Pioneer as part of GMD Shipyard's repair work (see Davis & Sons, Inc. v Gulf Oil Corp., 919 F2d 313, 315-316 [1990]). Of note, prior cases have uniformly held that contracts relating to ship repairs are maritime in nature (see N. Pac. S.S. Co. v Hall Bros. Marine Ry. & Shipbuilding Co., 249 US 119, 128-129 [1919]; Folksamerica Reinsurance Co., 413 F3d at 313; Diesel "Repower", Inc. v Islander Investments LTD., 271 F3d 1318, 1322-1323 [11th Cir 2001]). Although there is nothing particularly maritime about Champion's scaffolding work, the scaffolding work was performed on a vessel located in navigable waters and was integral to GMD Shipyard's ability to accomplish its repair tasks. Under these circumstances, the contract is a maritime contract (see Hoda v Rowan Companies, Inc., 419 F3d 379, 383-383 [5th Cir 2005]; Theriot, 783 F2d at 539), maritime law preempts application of General Obligations Law § 5-322.1 (see Hoda 419 F3d at 380 [Louisiana provision baring indemnification for a party's own negligence preempted by maritime law]), and allows GMD Shipyard to obtain indemnification for its own negligence (see id.; Theriot, 783 F2d at 540).
Champion argues that federal maritime law does not apply because plaintiff is not a employee under the LHWCA. However, as noted above, this court has found that plaintiff is covered as an LHWCA employee. In addition, as is evident from the discussion relating to maritime contracts, coverage under the LHWCA is not a factor in the determining whether or not a contract is a maritime contract.
Champion's other arguments that GMD Shipyard may not rely on the contractual indemnification provision do not warrant much discussion. In this respect, Champion's contention that an estoppel arises because GMD Shipyard asserted in its third-party complaint that plaintiff was an employee of Champion is without merit because such an allegation is in no way inconsistent with GMD Shipyard's current position that plaintiff must be deemed GMD Shipyard's statutory employee under the LHWCA. In addition, GMD Shipyard's amended answer, in which it asserted affirmative defenses that plaintiff's claims fell within maritime jurisdiction and that the LHWCA served as plaintiff's exclusive remedy gave Champion sufficient notice of its present claims. Finally, Champion further contends that, if plaintiff is deemed GMD Shipyard's statutory employee under the LHWCA, the contractual indemnification provision will have been rendered moot by its plain language. Nothing in the plain language of the contractual indemnification provision, however, suggests that it is intended to encompass statutory employees of the contracting parties, rather than employees in the regular sense of the term. Accordingly, Champion has failed to demonstrate that it is entitled to dismissal of GMD Shipyard's claim for contractual indemnification.
As Champion has not submitted any evidence or made any legal argument with respect to GMD Shipyard's breach of insurance procurement claim, its motion must also be denied with respect to GMD Shipyard's insurance procurement claim.
It is noted that the issue of whether Champion obtained insurance that complied with its contractual obligation to obtain insurance covering GMD Shipyard as an additional insured may be resolved a related action commenced by GMD Shipyard against Champion's general liability insurer entitled GMD Shipyard Corp. v Lincoln General Ins. Co., Supreme Court, Kings County, Index No. 13283/09.
Turning to the common-law indemnification and contribution claims, Champion contends that since plaintiff did not suffer a grave injury, the claims for common-law indemnification and contribution are barred by Workers' Compensation Law § 11 (see Coque v Wildflower Estates Devs., Inc., 31 AD3d 484 [2006]). Champion has demonstrated, prima facie, that it obtained New York Workers' compensation coverage and that plaintiff did not suffer a grave injury through plaintiff's deposition testimony relating to his injuries and his bill of particulars (see Kitkas v Windsor Place Corp., 72 AD3d 649, 650 [2010]; Marshall v Arias, 12 AD3d 423, 423-424 [2004). As such, the indemnification and contribution claims against Champion are barred by Workers' Compensation Law § 11 under New York law. The Shipyard Defendants, however, contend that since Champion failed to obtain coverage under the LHWCA, Champion is not an employer protected by the exclusivity provisions of the LHWCA, and that the bar to indemnification and contribution under New York's Workers' Compensation Law is preempted by general maritime law.
Maritime law generally allows tort-based contribution and indemnification claims (see In re McAllister Towing & Transp. Co., Inc., 432 F3d 216, 223-224 [3d Cir 2005][contribution], cert denied 547 US 1113 [2006]; Hardy v Gulf Oil Corp., 949 F2d 826, 833 [5th Cir 1992][indemnification]). Since it is undisputed that Champion failed to obtain compensation for plaintiff as required by the LHWCA (33 USC § 904[a]), Champion is not protected by the exclusive remedy provisions of the LHWCA (33 USC § 905[a]), and without those protections, there is no applicable Federal or maritime bar to the indemnification and contribution claims against Champion (see Boles v Dormer Giant, Inc., 4 NY3d 235 [2005][New York Workers' Compensation bar on contribution and indemnity from employer inapplicable where employer has failed to secure proper compensation]; cf. Triguero v Consolidated Rail Corp., 932 F2d 95, 99 [2d Cir 1991][employer under LHWCA is not liable for tort based contribution and indemnification claims]).
Claims for tort-based contribution and indemnification, however, are generally only governed by maritime law when the indemnitee's primary liability to plaintiff is based on maritime law (see Hardy, 949 F2d at 830 n7; Gen. Contracting & trading Co., LLC, v Interpole Inc., 899 F2d 109, 113 [1st Cir 1990][where primary complaint governed by state law, indemnity claims are likewise governed by state law]; see also Cooper v Meridian Yachts, Ltd., 575 F3d 1151, 1172-1174 [11th Cir 2009]). Here, although this court found that this action falls within general maritime jurisdiction and although plaintiff had pled general maritime negligence claims, the only surviving claims against any of the Shipyard Defendants are the Labor Law §§ 240(1) and 241(6) causes of action against the City. Indeed, since the complaint has been dismissed against BNYDC, GMD Enterprises, and GMD Shipyard, they no longer have claims for contribution (see Zanghi v Laborers' Intl. Union of N. Am., AFL-CIO, 21 AD3d 1371 [2005]), and their indemnity claims are academic except to the extent they seek costs, disbursements and attorneys fees incurred by them in defending the main action (see Payne v 100 Motor Parkway Assocs., LLC, 45 AD3d 550, 554 [2007]). As the only remaining grounds of liability are the state law Labor Law claims against the City, the surviving indemnification claims and the City's contribution claims are governed by New York law (see Hardy, 949 F2d at 830 n7; Gen. Contracting & Trading Co., LLC, 899 F2d at 113; see also Cooper, 575 F3d at 1172-1174) and barred by Workers' Compensation Law § 11.
Even if general maritime jurisdiction requires application of maritime indemnification and contribution law to the Shipyard Defendants' third-party claims, preemption of Workers' Compensation Law § 11 is not compelled under the circumstances here. In this regard, as noted above, the fact that general maritime principals are applicable does not necessarily compel preemption of state law (see Cammon, 95 NY2d at 587-588). Indeed, the Court of Appeals for the Eleventh Circuit, in Brockington v Certified Electric, Inc. (903 F2d 1523 [11th Cir 1990], cert denied 498 US 1026 [1991]), held that a state workers' compensation exclusive remedy provision was not preempted by maritime law and thus barred a maritime negligence cause of action brought by worker who had received state workers compensation benefits. In reaching its conclusion, the court emphasized that, given the local nature of the case, the significant state interest in its worker's compensation scheme may outweigh maritime uniformity concerns where only general maritime rules are at play (id. at 1529-1533). Since the right to recover tort-based contribution or indemnification arises out of the same concerns of duty and equity that underlie a maritime negligence claim (see White v Johns-Manville Corp., 662 F2d 243, 247 [4th Cir 1981]), the rationale of Brockington is equally applicable to the contribution and indemnification claims here.
Concededly, other courts have disagreed with Brockington and held that exclusive remedy provisions of state workers' compensation statutes cannot preclude a plaintiff from bringing a general maritime negligence cause of action against his employer when an action falls within a court's maritime jurisdiction (see e.g. Green v Vermiolion Corp., 144 F3d 332 [5th Cir 1998], cert denied 526 US 1017 [1999]; Chan v Society Expeditions, 39 F3d 1398 [9th Cir 1994], cert denied 514 US 1004 [1995]; Purnell v Norned Shipping, B.V., 801 F2d 152, 156 [3d Cir 1986], cert denied 480 US 934 [1997]; Morrow v Marinemax, Inc., 731 F Supp2d 390 [DNJ 2010]; In re Garvey Marine, Inc., 2004 WL 2005824 [ND Ill 2004]). In these cases, the key factor in finding that preemption was required was the overarching concern for uniform rules that drives maritime law (see e.g. Green, 144 F3d at 341; Morrow, 731 F Supp2d at 398). Given that the Court of Appeals in Cammon has recognized that the maritime concern for uniformity can yield to important state objectives when local concerns predominate (see Cammon, 95 NY2d at 590), this court finds that decision in the Brockinton more closely hews to New York law.
Applying the rationale of Brokington and Cammon to the facts here, this court finds that the existence of maritime jurisdiction, in and of itself, is insufficient to preempt Workers' Compensation Law § 11's bar to claims for contribution and indemnification in this primarily local case (see Cammon, 588-590; cf. Mazenko v Electric Motor & Contracting Co., Inc., 244 Va 152, 164, 419 SE2d 637 [1992][although court applied balancing test similar to Brockington, court found that local concerns did not predominate where action was brought against statutory employer rather than actual employer under Virginia's workers compensation law, and plaintiff was receiving LHWCA benefits rather than state workers' compensation benefits]). As emphasized above in addressing the preemption arguments relating to Labor Law §§ 240(1) and 241(6), the entities before the court are New York entities whose liability is based on their status as landowners, lessees or contractors. In addition, the vessel owner itself is not before the court, and the vessel, although deemed to be in navigable waters, was not in operation and the water was drained from the dock. The hole itself was not a defect, and the defective cover was not part of the vessel's equipment, but provided by the contractor. More importantly with respect to the workers compensation issue, the case falls into the twilight zone where there is concurrent jurisdiction for both state workers' compensation coverage and LHWCA coverage (see Kaiser v Baskin, 340 US 886 [1950][primary land based worker injured on navigable waters]; Bethlehem Steel v Moore, 335 US 874 [1948], affirming Moores' Case, 323 Mass 162, 80 NE2d 878 [1948][primarily land based worker injured performing ship repairs in a dry dock]; Coppola v Logistec Conn., Inc., 283 Conn 1, 12-34, 925 A2d 257 [2007]; Berverly v Action Marine Serv. Inc., 433 So2d 139, 144-143 [La 1983]; Lane v Universal Stevedoring Co., 63 NJ 20, 30-31, 304 A2d 537 [1973]), Champion obtained state workers' compensation coverage, plaintiff is receiving compensation benefits as a result of that coverage and plaintiff, at least at this time, has withdrawn any claim for coverage under the LHWCA. Given the predominance of local concerns in this case and New York's strong interest in the enforcement of its workers' compensation scheme, this court concludes that Workers' Compensation Law § 11 is not preempted by maritime law, and that the common-law indemnification and contribution claims before the court are precluded by that section. Champion's motion is thus granted to the extent that the Shipyard Defendants' common-law indemnification and contribution claims are dismissed.
Finally, turning to the portion of the Shipyard Defendants' motion requesting summary judgment with respect to Champion's contractual indemnification claim, this court, for the reasons stated with respect to the denial of Champion's motion to dismiss GMD Shipyards' contractual indemnification claim, finds that GMD Shipyard is entitled to summary judgment granting its contractual indemnification claim.
SUMMARY
Pursuant to CPLR 3212, the court grants plaintiffs' motion to the extent that plaintiff is entitled to partial summary judgment with respect to liability as against the City on his Labor Law § 240(1) claim. Plaintiffs' motion is otherwise denied.
Pursuant to CPLR 3212, the court grants the Shipyard Defendants' motion to the extent that the complaint is dismissed as against BNYDC, GMD Enterprises and GMD Shipyard; to the extent that plaintiff's Labor Law § 200, common-law negligence and maritime negligence causes of action are dismissed as against the City; and to the extent that GMD Shipyard is entitled to conditional summary judgment with respect to its contractual indemnification claim as against Champion. The Shipyard Defendants' motion is otherwise denied.
Pursuant to CPLR 3212, the court grants Champion's motion to the extent that the Shipyard Defendants' common-law indemnification and contribution claims are dismissed. Champion's motion is otherwise denied.
The issues remaining for trial in the main action are whether the City may be held liable to plaintiff under Labor Law § 241(6), plaintiff's damages with respect to his Labor Law § 240(1) action as against the City and plaintiff Ariana Durando's damages on her derivative claim. With respect to the third-party action, the issues remaining for trial are whether Champion breached the insurance procurement provisions of its contract with GMD Shipyard, and the amount GMD Shipyard may recover under its contractual indemnification claim against Champion (which, given the dismissal of the main action against GMD Shipyard, is limited to its costs and fees incurred in defending the main action as against plaintiff).
This constitutes the decision, order and judgment of the court.
Enter
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J.S.C.