Agnese v. Taylor Mach. Works, Inc.

• Decision Date: 25 March 1991
• Parties: Assunta AGNESE, etc., Plaintiff, v. TAYLOR MACHINE WORKS, INC., Defendant Third-Party Plaintiff-Respondent, et al., Defendants, International Terminal Operations, Inc., Third-Party Defendant-Appellant, et al., Third-Party Defendant.
• Court: New York Supreme Court — Appellate Division

Page 766

567 N.Y.S.2d 766

171 A.D.2d 831

Assunta AGNESE, etc., Plaintiff, v. TAYLOR MACHINE WORKS, INC., Defendant Third-Party

Plaintiff-Respondent, et al., Defendants,

International Terminal Operations, Inc., Third-Party

Defendant-Appellant, et al., Third-Party Defendant.

Supreme Court, Appellate Division,

Second Department.

March 25, 1991.

Goldblum & DiCicco, Brooklyn (A. Paul Goldblum, of counsel), for third-party defendant-appellant.

Bunin & DiGiulio, New York City (Sheldon Bunin, of counsel), for defendant third-party plaintiff-respondent.

Before BROWN, J.P., and SULLIVAN, EIBER and O'BRIEN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages, inter alia, for wrongful death, the third-party defendant International Terminal Operations, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Huttner, J.), dated October 6, 1989, as, upon reargument, adhered to a prior determination denying its motion for summary judgment dismissing the third-party complaint insofar as asserted against it.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the motion for summary judgment is granted, and the third-party complaint is dismissed insofar as it is asserted against the third-party defendant International Terminal Operations, Inc.

On September 19, 1984, the plaintiff's decedent was killed when he was struck and crushed under a hi-lo toploader used to remove and replace shipping containers onto the chassis of trucks and transport the containers to and from shipside where they were loaded by a crane. At that time the plaintiff's decedent was employed by third-party defendant International Terminal Operations, Inc. (hereinafter ITO), which subsequently compensated the plaintiff pursuant to the Longshoremen's and Harbor Workers' Compensation Act (hereinafter the Act) (33 U.S.C. § 901, et seq.). The plaintiff then brought an action against Taylor Machine Works, Inc. (hereinafter Taylor), the manufacturer of the toploader, who in turn joined ITO, and the toploader operator, Willie Payton, seeking contribution and indemnification.

ITO unsuccessfully moved for summary judgment and, upon reargument, the court adhered to its initial determination.

Since there exist no questions of fact regarding whether the plaintiff's decedent was engaged in maritime employment on navigable waters at the time of the accident (see, Herb's Welding v. Gray, 470 U.S. 414, 423-424, 105...