Hartley v. City of New York

• Decision Date: 24 June 1996
• Parties: James HARTLEY, et al., Plaintiffs, v. CITY OF NEW YORK, et al., Defendants, Healy Tibbitts Construction Co., Inc., Defendant Third-Party Plaintiff-Respondent, MVN Associates, Inc., Third-Party Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 351

646 N.Y.S.2d 351

228 A.D.2d 646

James HARTLEY, et al., Plaintiffs, v. CITY OF NEW YORK, et al., Defendants,

Healy Tibbitts Construction Co., Inc., Defendant Third-Party

Plaintiff-Respondent,

MVN Associates, Inc., Third-Party Defendant-Appellant.

Supreme Court, Appellate Division,

Second Department.

June 24, 1996.

Smith & Laquercia, P.C., New York City (Joy R. Simon and Edwin L. Smith, of counsel), for third-party defendant-appellant.

Jacobowitz, Garfinkel & Lesman, New York City (Fiedelman & Hoefling [Paul D. Lawless], of counsel), for defendant third-party plaintiff-respondent.

Before MANGANO, P.J., and ROSENBLATT, RITTER and COPERTINO, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, etc., the third-party defendant, MVN Associates, Inc., appeals, as limited by its brief, from an so much of an order of the Supreme Court, Kings County (Jackson, J.), dated November 3, 1994, as denied its cross motion for summary judgment dismissing the third-party complaint.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The defendant third-party plaintiff Healy Tibbitts Construction Company (hereinafter Healy) contracted with the City of New York to install an outfall sewer project in Brooklyn, New York. Pursuant to the contract, Healy contracted with the third-party defendant MVN Associates, Inc. (hereinafter MVN), to perform certain underwater diving services. The plaintiff James Hartley was an employee-diver of MVN. Healy provided the barges from which the dives at issue were accomplished. The plaintiff, alleging that he was injured while performing diving services for the project, commenced this action against Healy and others seeking to recover damages arising from, inter alia, common law negligence. Healy, in turn, commenced a third-party action against MVN seeking indemnity pursuant to the contract between the parties. At issue on appeal is MVN's cross motion for summary judgment dismissing the third-party complaint.

The injured plaintiff concedes that his exclusive remedy against MVN, as his "employer" (see, 33 U.S.C. § 902[4] ), is compensation pursuant to the Longshore and Harbor Workers' Compensation Act (hereinafter the Act) (33 U.S.C. §§ 901 et seq.; 905[a]. However, pursuant to 33 U.S.C. § 905(b) of the Act, the plaintiff may sue a "vessel" for damages arising from negligence. The definition of "vessel" includes the "owner, owner pro hac vice, agent, operator, charter or bare boat charter, master, officer, or crew member" thereof (see, 33 U.S.C. § 902[21] ). Such a "vessel" may not seek indemnity or contribution from an "employer," either directly or indirectly, and "any agreements or warranties to the contrary shall be void" (see, 33 U.S.C. § 905[b]; Dodge v. Mitsui Shintaku Ginko K.K. Tokyo, 528 F.2d 669, cert. denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188). A nonvessel, however, may pursue, inter alia, its contractual remedies against an "employer" (see, Pennisi v. Standard Fruit & S.S. Co., 206 A.D.2d 290, 614 N.Y.S.2d 519). Here, MVN, arguing that Healy is a "vessel," sought dismissal of the third-party complaint pursuant to 33 U.S.C. § 905(b). However, questions of fact exist as to whether the barges at issue were "vessels" (compare, Penton v. Pompano Const. Co., 976 F.2d 636; Michel v. Total Transp., 957 F.2d 186; Burks v. Am. River Transp. Co., ...