McDonald v. City of New York

• Decision Date: 16 September 1996
• Citation: McDonald v. City of New York, 647 N.Y.S.2d 787, 231 A.D.2d 556 (N.Y. App. Div. 1996)
• Parties: , 1997 A.M.C. 868, 1998 A.M.C. 237 Clive McDONALD, Respondent, v. CITY OF NEW YORK, et al., Appellants (and a third-party action).
• Court: New York Supreme Court — Appellate Division

Page 787

647 N.Y.S.2d 787

231 A.D.2d 556, 1997 A.M.C. 868, 1998

A.M.C. 237

Clive McDONALD, Respondent, v.CITY OF NEW YORK, et al., Appellants (and a third-party action).

Supreme Court, Appellate Division Second Department.

Sept. 16, 1996.

Mendes & Mount, New York City(Anthony R. Filiato, of counsel), for appellantsCity of New York and Brooklyn Navy Yard Development Corporation.

White, Fleischner & Fino, New York City(Nancy Davis Lyness, of counsel), for appellantG-Marine Diesel Corporation.

Moskowitz, Passman & Edelman, New York City(Jane R. Goldberg, of counsel), for respondent.

Before BRACKEN, J.P., and KRAUSMAN, GOLDSTEIN and LUCIANO, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, the defendantsCity of New York and Brooklyn Navy Yard Development Corp. appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County(Hutcherson, J.), dated July 7, 1995, as denied that branch of their motion which was for summary judgment dismissing the plaintiff's second cause of action, and the defendantG-Marine Diesel Corporation separately appeals from so much of the same order as denied its motion to dismiss the plaintiff's second cause of action.

ORDERED that the order is modified, on the law, by deleting the provision thereof which denied (1) that branch of the motion of the defendantsCity of New York and Brooklyn Navy Yard Development Corp. which was for summary judgment dismissing the plaintiff's second cause of action, and (2) the motion of G-Marine Diesel Corporation which was for summary judgment dismissing the plaintiff's second cause of action, and substituting therefor a provision (1) granting that branch of the motion of the City of New York and Brooklyn Navy Yard Development Corp. which was for summary judgment dismissing the plaintiff's second cause of action to the extent that the second cause of action asserts claims under Labor Law §§ 240and241, and (2) granting that branch of the motion of the defendantG-Marine Diesel Corporation which was for summary judgment dismissing the plaintiff's second cause of action insofar as it asserts claims under Labor Law §§ 240and241; as so modified, the order is affirmed, with one bill of costs to the appellants appearing separately and filing separate briefs.

The plaintiff was injured while engaged in the removal of "buss bars" from the gallery of a dry dock at the Brooklyn Navy Yard.The Supreme Court, Kings County, held that the ensuing action for damages did not fall within admiralty jurisdiction (U.S. Const., artIII, § 2[1];28 U.S.C. § 1333[1] ) concluding, inter alia, that the accident was "not of the general type which would in any way impede 'maritime commerce' "(quoting, Sisson v. Ruby, 497 U.S. 358, 110 S.Ct. 2892, 111 L.Ed.2d 292).We do not agree with this conclusion.

The actual impact on maritime commerce occasioned by the particular incident under review in this case is irrelevant to the determination whether maritime jurisdiction exists.The relevant inquiry is whether the general features of the accident place it "within a class of incidents that posed more than a fanciful risk to commercial shipping"(Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 539, 115 S.Ct. 1043, 1051, 130 L.Ed.2d 1024).An injury to a worker engaged in the construction, repair or maintenance of a dry dock, like an injury to a seaman in navigable waters, "could lead to restrictions on the navigational use of the waterway"(Neely v. Club Med Mgt. Servs., 63 F.3d 166, 179, quotingGrubart, Inc. v. Great Lakes Dredge & Dock Co., supra, at 539, 115 S.Ct. at 1051;see also, Coats v. Penrod Drilling Corp., 61 F.3d 1113[injury to worker on jack-up oil rig];White v. U.S., 53 F.3d 43[injury to security guard who lost balance, fell off gangway, and struck nose on equipment stored on pier];Mink v. Genmar Industries, Inc., 29 F.3d 1543[injury to plaintiff who fell on deck of pleasure boat while trying to find secure position] ).We have previously held that dock repairs, in general, are to be considered a traditional maritime activity (see, Tompkins v. Port of N.Y. Auth., 217 A.D.2d 269, 638 N.Y.S.2d 94;Irvin v. Amerada Hess Corp., 191 A.D.2d 478, 594 N.Y.S.2d 324;see also, Agis v City of New York, 231 A.D.2d 537, 647 N.Y.S.2d 789[decided herewith];Torres v. City of New York, 177 A.D.2d 97, 581 N.Y.S.2d 194, cert. denied, 507 U.S. 986, 113 S.Ct. 1584, 123 L.Ed.2d 151).

Under these circumstances, we conclude that there is a maritime nexus.We note that the Supreme Court correctly held that there is a maritime situs, in that the wrong occurred on what are considered to be navigable waters (see, Torres v. City of New York, supra).With maritime jurisdiction comes the application of substantive maritime law.Pursuant to substantive maritime law, there is no basis for the imposition of tort liability solely on account of a defendant's status as an owner or general contractor, and in the absence of proof of actual negligence; in other words, the strict liability provisions of the New York Labor Law are preempted (see, Agis v. City of New York, supra;Tompkins v. Port of N.Y. Auth., supra;Torres v. City of New York, supra;Stuto v. Coastal Dry Dock & Repair Corp., 153 A.D.2d 937, 545 N.Y.S.2d 743).The Supreme Court should therefore have granted the motions insofar as they were to dismiss the portion of the plaintiff's second cause of action which is premised on Labor Law §§ 240and241.

We note that the Supreme Court found that there were issues of fact precluding summary judgment with respect to the plaintiff's action based on common law negligence, and that neither appellant takes issue with this aspect of the court's...