Durando v. City of New York, 33753/08

CourtUnited States State Supreme Court (New York)
Writing for the CourtFrancois Rivera
Citation2011 NY Slip Op 52181
Decision Date05 December 2011
Docket Number33753/08
PartiesDaniel 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.

2011 NY Slip Op 52181

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.

33753/08

Supreme Court, Kings County

Decided on December 5, 2011


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,1 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

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.2 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

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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.

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

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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....

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