Durando v. City of N.Y.

• Decision Date: 03 April 2013
• Citation: 105 A.D.3d 692,2013 N.Y. Slip Op. 02214,963 N.Y.S.2d 670
• Parties: Daniel DURANDO, et al., plaintiffs-respondents-appellants, v. CITY OF NEW YORK, et al., defendants third-party plaintiffs-appellants-respondents, et al., defendant; Champion Construction Corp., doing business as Champion Scaffold, third-party defendant-respondent-appellant.
• Court: New York Supreme Court — Appellate Division

105 A.D.3d 692

963 N.Y.S.2d 670

2013 N.Y. Slip Op. 02214

Daniel DURANDO, et al., plaintiffs-respondents-appellants,

v.CITY OF NEW YORK, et al., defendants third-party plaintiffs-appellants-respondents, et al., defendant;

Champion Construction Corp., doing business as Champion Scaffold, third-party defendant-respondent-appellant.

Supreme Court, Appellate Division, Second Department, New York.

April 3, 2013.

Kennedy Lillis Schmidt & English, New York, N.Y. (Craig S. English and Thomas C. Murphy of counsel), for defendants third-party plaintiffs-appellants-respondents.

Bennett, Giuliano, McDonnell & Perrone LLP, New York, N.Y. (Nicholas P. Giuliano and Matthew M. Gorden of counsel), for plaintiffs-respondents-appellants.

Lester Schwab Katz & Dwyer, LLP, New York, N.Y. (John Sandercock, John Tarnowski, and Harry Steinberg of counsel), for third-party defendant-respondent-appellant.

WILLIAM F. MASTRO, J.P., REINALDO E. RIVERA, L. PRISCILLA HALL, and ROBERT J. MILLER, JJ.

In an action to recover damages for personal injuries, etc., the defendants third-party plaintiffs, City of New York, GMD Enterprises Corp., GMD Shipyard Corp., and Brooklyn Navy Yard Development Corporation, appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (F.Rivera, J.), dated December 5, 2011, as (a) granted that branch of the plaintiffs' motion which was for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against the defendant third-party plaintiff City of New York, (b) denied those branches of their cross motion which were for summary judgment dismissing the causes of action alleging violations of Labor Law §§ 240(1) and 241(6) insofar as asserted against the defendant third-party plaintiff City of New York, (c) denied that branch of their cross motion which was for summary judgment on the third-party cause of action of the defendant third-party plaintiff City of New York for common-law indemnification and contribution against the third-party defendant; the plaintiffs cross-appeal, as limited by their brief, from so much of the same order as (a) granted that branch of the cross motion of the defendants third-party plaintiffs which was for summary judgment dismissing the complaint insofar as asserted against the defendant third-party plaintiff GMD Enterprises Corp., (b) granted that branch of the cross motion of the defendants third-party plaintiffs which was for summary judgment dismissing the causes of action alleging violations of Labor Law §§ 200, 240(1), and 241(6) insofar as asserted against the defendant third-party plaintiff GMD Shipyard Corp., and (c) denied that branch of their motion which was for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against the defendant third-party plaintiff GMD Shipyard Corp.; and the third-party defendant cross-appeals, as limited by its brief, from so much of the same order as granted that branch of the cross motion of the defendants third-party plaintiffs which was for summary judgment on the third-party cause of action for contractual indemnification asserted by the defendant third-party plaintiff GMD Shipyard Corp. against it.

ORDERED that the appeals by the defendants third-party plaintiffs GMD Enterprises Corp., GMD Shipyard Corp., and Brooklyn Navy Yard Development Corporation are dismissed, without costs or disbursements, because they are not aggrieved by the order appealed from, since the Supreme Court has directed the dismissal of the matter as to them ( seeCPLR 5511); and it is further,

ORDERED that the order is affirmed insofar as appealed from by the defendant third-party plaintiff City of New York, and insofar as cross-appealed from, without costs or disbursements.

The plaintiff Daniel Durando was working as a scaffolding installer and remover for the third-party defendant, Champion Construction Corp., doing business as Champion Scaffold (hereinafter Champion), on the SS Chemical Pioneer, a ship in dry dock for repairs at the Brooklyn Navy Yard. He allegedly sustained injures when he fell through an improperly covered opening in the floor, or deck, of one of the ship's cargo holds. Daniel Durando, and his wife Ariana Durando suing derivatively, commenced this action to recover damages, inter alia, for his injuries against, among others, the defendant third-party plaintiff City of New York, the fee owner of the land on which the dry dock is situated; the defendant third-party plaintiff Brooklyn Navy Yard Development Corp. (hereinafter the BNYDC), a not-for-profit entity which leased the navy yard from the City pursuant to a long-term lease; the defendant third-party plaintiff GMD Shipyard Corp. (hereinafter GMD Shipyard), the ship repair contractor; and the defendant third-party plaintiff GMD Enterprises Corp. (hereinafter GMD Enterprises), which leased the subject dry dock from the BNYDC and subleased it to GMD Shipyard. The defendants third-party plaintiffs commenced a third-party action against Champion seeking, inter alia, contribution and indemnification.

The plaintiffs moved for summary judgment on several of their causes of action. The defendants third-party plaintiffs cross-moved for summary judgment dismissing the complaint on various grounds, and for summary judgment on their third-party causes of action for indemnification and contribution. The third-party defendant, Champion, moved for summary judgment dismissing the third-party complaint.

As pertinent to this appeal, in the order appealed from, the Supreme Court, inter alia, (1) directed the dismissal of all causes of action except for the causes of action alleging violations of Labor Law §§ 240(1) and 241(6) insofar as asserted against the City; (2) awarded summary judgment to the plaintiffs on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against the City; (3) directed the dismissal of the third-party causes of action for common-law indemnification and contribution; and (4) awarded summary judgment to GMD Shipyard on its third-party cause of action for contractual indemnification.

The defendants third-party plaintiffs appeal, and the plaintiffs and Champion cross-appeal.

Federal judicial power “shall extend ... to all Cases of admiralty and maritime Jurisdiction” (U.S. Const., art. III, § 2, cl.1). However, federal court jurisdiction over such cases “has never been entirely exclusive” ( American Dredging Co. v. Miller, 510 U.S. 443, 446, 114 S.Ct. 981, 127 L.Ed.2d 285), and the exercise of admiralty jurisdiction “does not result in automatic displacement of state law” ( Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 545–546, 115 S.Ct. 1043, 130 L.Ed.2d 1024;see Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 206, 116 S.Ct. 619, 133 L.Ed.2d 578).

With respect to maritime torts, a state “may modify or supplement the maritime law by creating liability which a court of admiralty will recognize and enforce when the state action is not hostile to the characteristic features of the maritime law or inconsistent with federal legislation” ( Just v. Chambers, 312 U.S. 383, 388, 61 S.Ct. 687, 85 L.Ed. 903;see Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. at 206, 116 S.Ct. 619, 133 L.Ed.2d 578;American Dredging Co. v. Miller, 510 U.S. at 447, 114 S.Ct. 981, 127 L.Ed.2d 285;Becker v. Poling Transp. Corp., 356 F.3d 381, 388).

Here, there is no real dispute that the present action falls within federal maritime jurisdiction ( see Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. at 534, 115 S.Ct. 1043, 130 L.Ed.2d 1024;Cammon v. City of New York, 95 N.Y.2d 583, 721 N.Y.S.2d 579, 744 N.E.2d 114;McDonald v. City of New York, 231 A.D.2d 556, 556–557, 647 N.Y.S.2d 787). Contrary to the contention of the defendants third-party plaintiffs, however, the causes of action alleging violations of Labor Law §§ 240(1) and 241(6) are not preempted by general maritime law. Under the circumstances of this case, the application of Labor Law §§ 240(1) and 241(6), which are local regulations enacted to protect the health and safety of workers in this state, will not unduly interfere with a fundamental characteristic of maritime law or the free flow of maritime commerce ( see Grant Smith–Porter Ship Co. v. Rohde, 257 U.S. 469, 473, 476, 42 S.Ct. 157, 66 L.Ed. 321;Western Fuel Co. v. Garcia, 257 U.S. 233, 239, 242, 42 S.Ct. 89, 66 L.Ed. 210;Cammon v. City of New York, 95 N.Y.2d at 583, 721 N.Y.S.2d 579, 744 N.E.2d 114;Sweeney v. City of New York, 4 Misc.3d 834, 848, 782 N.Y.S.2d 537;see also Lee v. Astoria Generating Co., L.P., 13 N.Y.3d 382, 892 N.Y.S.2d 294, 920 N.E.2d 350;cf. Olsen v. James Miller Mar. Serv., Inc., 16 A.D.3d 169, 791 N.Y.S.2d 92). Accordingly, the Supreme Court properly denied that branch of the cross motion of the defendants third-party plaintiffs which was for summary judgment dismissing those causes of action insofar as asserted against the City.

Furthermore, the Supreme Court properly granted that branch of the plaintiffs' motion which was for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against the City. The plaintiffs established their prima facie entitlement to judgment as a matter of law by showing that there was a failure to provide a proper safety device to prevent the injured plaintiff from falling through a hole in the deck of the ship's cargo hold ( see Lardaro v. New York City Bldrs. Group, 271 A.D.2d 574, 576, 706 N.Y.S.2d 174; Carpio v. Tishman Constr. Corp. of N.Y., 240 A.D.2d 234, 658 N.Y.S.2d 919). In opposition, the defendants failed to raise a triable issue of fact.

We agree with the Supreme Court that any action by the plaintiffs against GMD Shipyard was barred by the Federal Longshore and...