Irvin v. Amerada Hess Corp.

• Decision Date: 08 March 1993
• Citation: Irvin v. Amerada Hess Corp., 594 N.Y.S.2d 324, 191 A.D.2d 478 (N.Y. App. Div. 1993)
• Parties: Huey IRVIN, Appellant-Respondent, v. AMERADA HESS CORP., et al., Respondents-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 324

594 N.Y.S.2d 324

191 A.D.2d 478

Huey IRVIN, Appellant-Respondent, v.AMERADA HESS CORP., et al., Respondents-Appellants.

Supreme Court, Appellate Division Second Department.

March 8, 1993.

Rosenberg, Minc, Bryer & Armstrong, New York City(Seymour Armstrong, of counsel), for appellant-respondent.

Hill, Betts & Nash, New York City(John F. Keating and Frank H. Loomis, of counsel), for respondents-appellants.

Before BRACKEN, J.P., and EIBER, PIZZUTO and SANTUCCI, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries pursuant to Labor Law §§ 200,241(6)and240, the plaintiff appeals from so much of an order of the Supreme Court, Kings County(Held, J.), dated January 7, 1991, as granted the defendants' motion for summary judgment on stated conditions, and the defendants have filed a notice of cross appeal from the imposition of those conditions.

ORDERED that the cross appeal is dismissed as abandoned; and it is further,

ORDERED that the order is affirmed insofar as appealed from; and it is further,

ORDERED that the defendants are awarded one bill of costs.

The plaintiff was injured on March 6, 1985, while he was engaged in "backfilling * * * performed to strengthen [a] dock and bulkhead".His job was to guide a bucket which was suspended from a crane mounted on a floating scow.At one point, the bucket struck the plaintiff's ankle and caused him to suffer a bimalleolar fracture.

We agree with the Supreme Court that Federal maritime law applies to this case pursuant to the Admiralty Jurisdiction Extension Act of 1948(46 USCApp. § 740;see, Gutierrez v. Waterman S.S. Corp., 373 U.S. 206, 83 S.Ct. 1185, 10 L.Ed.2d 297;Torres v. City of New York, 177 A.D.2d 97, 101-102, 581 N.Y.S.2d 194;Huser v. Santa Fe Pomeroy, 9th Cir., 513 F.2d 1298;Tucker v. Calmar S.S. Corp., 4th Cir., 457 F.2d 440;Thompson v. Calmar S.S. Corp., 3d Cir., 331 F.2d 657, cert. denied, 379 U.S. 913, 85 S.Ct. 259, 13 L.Ed.2d 184;Annotation, Admiralty Extension Act, 14 A.L.R. Fed 664, § 24).Contrary to the plaintiff's argument on appeal, we find that there was a sufficient nexus between the happening of this accident and a traditional maritime activity, i.e., the repairing of a dock (see, e.g., Torres v. City of New York, supra;Duncanson-Harrelson Co. v. Director, Office of Workers' Compensation, 9th Cir., 644 F.2d 827;Duncanson-Harrelson v. Director, Office of Workers' Compensation Programs, U.S. Dept. of Labor, 9th Cir., 686 F.2d 1336, vacated on other grds., 462 U.S. 1101, 103 S.Ct. 2446, 77 L.Ed.2d 1329 on remittitur713 F.2d 462;Wistrom v. Duluth, Missabe & Iron Range Ry. Co., Minn.App., 437 N.W.2d 730).Contrary to the plaintiff's additional argument, we conclude that the existence of Federal maritime jurisdiction in this case precludes application of the New York Labor Law(§§ 200; 240[1]; 241[6];see, Torres v. City of New York, supra;Stuto v. Coastal Dry Dock & Repair Corp., 153 A.D.2d...