Loland v. City of New York

• Decision Date: 21 February 1995
• Citation: 212 A.D.2d 674,622 N.Y.S.2d 762
• Parties: Russell LOLAND, Respondent, v. CITY OF NEW YORK, Defendant, Healy Tibbitts Construction Co., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 762

622 N.Y.S.2d 762

212 A.D.2d 674

Russell LOLAND, Respondent, v. CITY OF NEW YORK, Defendant Healy Tibbitts Construction Co., Appellant.

Supreme Court, Appellate Division Second Department.

Feb. 21, 1995.

Ahmuty, Demers & McManus, Albertson (Sheila T. McGinn, of counsel), for appellant.

Monsour & Winn, P.C., Lake Success (Elaine C. Gangel, on the brief), for respondent.

Before BRACKEN, J.P., and BALLETTA, COPERTINO and HART, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries brought under the Jones Act (46 U.S.C.App. § 688), the defendant Healy Tibbitts Construction Co. appeals from an order of the Supreme Court, Kings County (Bernstein, J.), dated July 7, 1993, which granted the plaintiff's motion for reargument of the appellant's motion for summary judgment dismissing the complaint insofar as it is asserted against it, and upon reargument, vacated so much of its order dated January 14, 1993, as granted the appellant's motion for summary judgment, and thereupon denied the appellant's motion for summary judgment dismissing the complaint insofar as it is asserted against it.

ORDERED that the order is affirmed, with costs.

Motions for reargument are addressed to the sound discretion of the court which decided the prior motion and may be granted upon a showing that the court overlooked or misapprehended the facts or law or for some reason mistakenly arrived at its earlier decision (see, Rodney v. New York Pyrotechnic Prods. Co., 112 A.D.2d 410, 411, 492 N.Y.S.2d 69). The Supreme Court providently exercised its discretion in granting the plaintiff's motion to reargue.

In this instance, the plaintiff is not precluded from suing his employer for negligence pursuant to the Jones Act (46 U.S.C.App. § 688) simply because he has received compensation benefits under the Longshore and Harbor Workers' Compensation Act (33 U.S.C. § 901 et seq.), provided that, as in this case, he is a "member of a crew of any vessel," a phrase that is a refinement of the term "seaman" in the Jones Act (see, Southwest Marine v. Gizoni, 502 U.S. 81, 85, 112 S.Ct. 486, 490, 116 L.Ed.2d 405; McDermott Int'l v. Wilander, 498 U.S. 337, 347, 111 S.Ct. 807, 813, 112 L.Ed.2d 866). The Supreme Court properly denied the appellant's motion for summary judgment since it failed to establish as a matter of law that the barge which supported the pile-driving crane, upon which the plaintiff was injured, did not constitute a "vessel" pursuant to...