Lee v. Astoria Generating Company, L.P., 2007 NY Slip Op 34371(U) (N.Y. Sup. Ct. 1/12/2007)
| Decision Date | 12 January 2007 |
| Docket Number | Motion Seq. No. 003,Index Number: 400173/2004,Index No. 590721/2004 |
| Citation | 2007 NY Slip Op 34371 |
| Parties | JAMES D. LEE, Plaintiff, v. ASTORIA GENERATING COMPANY, L.P., ORION POWER NEW YORK GP, INC., ORION POWER NEW YORK, L.P., ORION POWER NEW YORK LP, LLC, Defendants. ASTORIA GENERATING COMPANY, L.P., ORION POWER NEW YORK GP, INC., ORION POWER NEW YORK, L.P., ORION POWER NEW YORK LP, LLC, Third-Party Plaintiffs, v. ELLIOTT TURBOMACHINERY CO., INC. and ELLIOTT COMPANY, Third-Party Defendants. |
| Court | New York Supreme Court |
MEMORANDUM DECISION
Before this Court is the motion of Third-Party Defendants Elliott Turbomachinery Co., Inc. and Elliott Company, former employer of Plaintiff James D. Lee, for an order pursuant to CPLR 3212 granting summary judgment dismissing the third-party complaint and the underlying complaint in its entirety. Also before this Court is a cross-motion by Third-Party Plaintiffs Astoria Generating Company, L.P., Orion Power New York GP, Inc., Orion Power New York L.P., Orion Power New York LP, LLC for summary judgment dismissing the underlying complaint, and granting summary judgment for common law and contractual defense and indemnification against third-party defendants. For the reasons that follow, the underlying complaint and third-party complaint are dismissed.
On April 16, 2001, James D. Lee ("Plaintiff') was injured while performing work as a millwright for Elliott Turbomachinery Co., Inc. (hereinafter "Elliott") at the Gowanus Gas Turbines (hereinafter the "Facility") located in Upper New York Bay adjacent to the intersection of 29th Street and 2nd Avenue in Brooklyn, New York. The Facility is owned and operated by Astoria Generating Company, L.P., Orion Power New York GP, Inc., Orion Power New York, L.P., and Orion Power New York LP, LLC (hereinafter "Astoria/Orion"). The Facility is a peak load electrical power generating station used during high-demand periods.
The site is comprised, in part, of four barges that are each 80 feet wide by 200 feet long that collectively house eight individual gas turbine generating units. The units arc approximately 10 feet wide by 50 feet long. The barges, which were originally purchased by Consolidated Edison and arrived at the site in 1969, float in the navigable waters of the Gowanus Canal and are attached to a pier by way of a spud beam clamping system, which allows the barges to rise and fall with the tide. Additionally, electrical lines run from the adjacent land to the barges and transmit the electricity generated by the barge-mounted turbines to an adjacent substation that is owned by Consolidated Edison. Communication, remote start, and fire protection lines, as well as water supplied via the New York City water system, also run between the land and the barges. The barges can be disengaged from the pier and transported by tugboat to dry dock for maintenance and repair, or to other locations to supply electricity where needed.1 The barge contains life rings and is only accessible by walking on a gang plank (Mtn. at ¶ 27).
Astoria/Orion hired Elliott to conduct a major overhaul of the turbines (Mtn. at ¶ 29). This involved disassembling each turbine, shipping parts to Elliott's facility in Pennsylvania to either be restored or replaced, arid then returning the parts to the Gowanus site for reassembly by Elliott's millwrights.
On the date of the accident, Plaintiff and his work partner, Steve Perry ("Perry"), were performing work on Turbine 2, located on Barge 1. According to Plaintiff, he was ordered to enter the turbine's exhaust well through the stack hatch in order to perform welding duties at the base of the well (Opp. at pg. 5-6; Lee Aff. ¶ 4), even though such entry is typically made by cutting an access hole in the side of the well (Opp. at pg. 5; Lee Aff ¶ 4). Such an opening existed until the day before the accident (Opp. at pg. 6; Lee Aff. ¶ 4). The hatch is located approximately 15 feet above the base of the well, which sits on the deck of the barge. The distance from the hatch opening to the top of the turbine shell is approximately six to eight feet (Opp. at pg. 6; Lee Aff. ¶ 4).
According to Plaintiff, he entered the well through the hatch without a ladder, any fall protection, or any safety devices, despite expressing concern about the method as being unsafe, because lie was told to or to "get [his] stuff and leave" (Opp. at pg. 7; Lee Tr. 39; Lee Aff. ¶ 5). After Plaintiff had lowered himself through the top of the hatch to the top of the turbine he slipped and fell eight feet to the base of the well, injuring his back (Opp. at pg. 8; Lee Aff. ¶ 4). Upon completing the welding duties Plaintiff climbed out of the exhaust well with the assistance of Perry. Thereafter, Plaintiff aggravated his back injury as he and Perry were closing the hatch (Mtn. ¶ 41). Upon closing the hatch and climbing down the outside of the exhaust well Plaintiff left the jobsite and sought medical attention (Opp. at pg. 8; Lee Aff. ¶ 4).
Plaintiff filed a workers compensation claim with the United States Department of Labor against Elliott pursuant to the Longshore and Harbor Workers Compensation Act ("LHWCA") (33 U.S.C. § 901 et seq.), and has been receiving benefits under the LHWCA since 2002. An administrative law judge found that Plaintiff was injured during the course of his employment while on a navigable waterway and awarded him benefits under the LHWCA. This decision was affirmed by the Benefits Review Board ("BRB").
Plaintiff commenced the within action in June 2003 against Astoria/Orion alleging that his injuries were caused by violations of Labor Law § 200, 240(1), and 241(6).2 Thereafter, Astoria/Orion impleaded Elliott, claiming it was entitled to common law and contractual indemnification. The instant motions ensued.
Elliott seeks dismissal of the third-party complaint, arguing that as Plaintiffs employer, it is immune from suit under the LHWCA (33 U.S.C. § 905[a]), which is the exclusive remedy for maritime employees covered under the LHWCA. It is further argued that the LHWCA renders Elliott immune from claims for indemnity (33 U.S.C. § 905N) (Mtn. ¶ 5).3 Thus, Elliott argues the third-party complaint should be dismissed.
Elliott further argues that Plaintiff's action against Astoria/Orion should be dismissed because Plaintiff's (1) Labor Law § 240(1) claim is preempted by the LHWCA, 33 U.S.C. § 905[b];4 (2) claims for both Labor Law §§ 240(1) and 241(6) are preempted by federal Maritime Law; and (3) Labor Law §§ 200, 240(1), and 241(6) claims are not viable because Astoria/Orion did not exercise any supervision or control over the methods and materials of his work, his own negligence was the sole proximate cause of his injury, and he was not engaged in any protected activity such as construction, excavation, or demolition work, respectively (Mtn. ¶¶ 6-7). Elliott also adds that Plaintiff is estopped from taking the position against Elliott that he was engaged in a "local, land-based repair," which is contrary to his argument before the Department of Labor against Orion/Astoria that he was injured while working aboard a vessel.5
Astoria/Orion filed a cross-motion joining in Elliott's motion for summary judgment to dismiss the underlying complaint, adding that Plaintiff was not engaged in activity protected under Labor Law § 240(1) and that Plaintiff was not engaged in gravity-related work when he fell. Also, Astoria/Orion seeks summary judgment on its claims for defense and conditional indemnification against Elliott pursuant to its "Master Agreement" with Astoria. In opposition to dismissal of the indemnification claims, Astoria/Orion argues that in so much as this matter is currently in State Court and there is no pending Federal claim/suit, Elliott's application to dismiss is unwarranted, and Elliott's request that this Court impose Federal Law in a State Action is unwarranted.
Plaintiff opposes both Elliott's motion and Astoria/Orion's cross-motion, arguing that his Labor Law claims are not preempted by Federal law because the "floating electric generating station structure" is not a "vessel in navigation." According to Plaintiff, caselaw provides that the structure here is not a vessel in navigation because it has permanent anchorage, connection to city utilities, lack of propulsion equipment, no transportation function, and was built and put to a special use, not for transportation, but as an extension of land or a land-based activity. Thus, substantive maritime law does not apply, and Plaintiff's claim, which is pursuant to LHWCA § 933's preservation of third-party claims under state law, is to be analyzed under New York State substantive law. Plaintiff further contends that neither his receipt of LHWCA benefits nor construction work done near navigable waters, creates maritime jurisdiction. And, even if the Court finds maritime jurisdiction over Elliott because of its payment of LHWCA benefits, maritime jurisdiction does not necessarily apply to Plaintiff's claim against Orion.
In the event the Court finds that the floating electric generating station structure at issue is a vessel in navigation, Plaintiff claims that New York's Labor Law still applies under the "maritime but local" doctrine, which allows federal admiralty law to import state substantive law. Such a finding would be one of several factors in determining whether substantive general maritime law principals would apply to preempt plaintiff's Labor Law claims. And, here, the issues predominately are local in concern, fall within the traditional applicable police powers of the State, and there are no countervailing federal concerns affected Plaintiff further contends that 33 USC § 905 [b] provides that claims arc assertable against the vessel for negligence as otherwise permitted...
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