Posillico v. Laquila Const., Inc.

• Decision Date: 12 October 1999
• Parties: Anthony POSILLICO, et al., appellants, v. LAQUILA CONSTRUCTION, INC., defendant third-party plaintiff-respondent; Spencer White & Prentis Foundation Corp., third-party defendant-respondent.
• Court: New York Supreme Court — Appellate Division

Page 507

696 N.Y.S.2d 507

Anthony POSILLICO, et al., appellants, v. LAQUILA CONSTRUCTION, INC., defendant third-party plaintiff-respondent;

Spencer White & Prentis Foundation Corp., third-party defendant-respondent.

Supreme Court, Appellate Division, Second Department, New York.

Oct. 12, 1999.

Poisson & Hackett, Garden City, N.Y. (William J. Poisson and Anita Nissan Yehuda of counsel), for appellants.

Klen, DiSomma & McGlynn, New York, N.Y. (Martin M. McGlynn of counsel), for defendant third-party plaintiff-respondent.

DAVID S. RITTER, J.P., DANIEL W. JOY, HOWARD MILLER and NANCY E. SMITH, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Garry, J.), dated June 18, 1998, which granted the respective motions of the third-party defendant Spencer White & Prentis Foundation Corp., and the defendant, Laquila Construction, Inc., to amend their respective answers to assert affirmative defenses based on the Federal Longshore and Harbor Workers Act (33 USC § 901 et seq.) and denied their cross motion for partial summary judgment on the issue of liability on their causes of action under Labor Law §§ 240(1), 241(6) and 200.

ORDERED that the order is modified, by (1) deleting the provision thereof granting the respondents' respective motions to amend their answers and substituting therefor a provision denying those motions and (2) deleting the provision thereof denying that branch of the plaintiffs' cross motion which was for partial summary judgment on the issue of liability on the cause of action under Labor Law § 240(1) and substituting therefor a provision granting that branch of the cross motion; as so modified, the order is affirmed insofar as appealed from, with one bill of costs to the plaintiffs.

On appeal, the plaintiffs contend that the Supreme Court erred in granting the respondents' motions to amend their respective answers to assert as affirmative defenses that the causes of action under the New York State Labor Law are preempted by Federal maritime law (see, U.S. Const., art. III, § 2; 28 USC § 1333 ), and in denying their cross motion for partial summary judgment on their causes of action under the Labor Law.

The Supreme Court erred in granting the respondents' motions to amend their answers. Although leave to amend should be freely given, a motion should be denied if, as is the case here, the substance of the proposed pleading lacks merit (see, ICC Bridgeport Ltd. Partnership v. Primrose Dev. Corp., 221 A.D.2d 417, 633 N.Y.S.2d 571).

Although the plaintiff Anthony Posillico fell into the edge of the waters of the East River as a result of the accident, the accident itself did not occur on navigable waters (see, Abbud v. City of New York, 2d Cir., 159 F.3d 1345; Executive Jet Aviation, Inc. v. City of Cleveland, Ohio, 409 U.S. 249, 260 n. 8, 93 S.Ct. 493, 34 L.Ed.2d 454; Brooker v. Durocher Dock and Dredge, 11th Cir., 133 F.3d 1390, cert. dismissed --- U.S. ----, 119 S.Ct. 390, 142 L.Ed.2d 323). There is neither a situs nor a nexus which would support the application of Federal maritime law to this action (see, Abbud v. City of N.Y., supra; Executive Jet Aviation, Inc. v. City of Cleveland, supra; Ellis v. Riverport Enters., Inc., 957 F.Supp. 105; Brooker v. Durocher Dock and Dredge, supra; Pereira v. NAB Construction Corp., 256 A.D.2d 395, 681 N.Y.S.2d 583). Accordingly, the respondents' motions must be denied.

Since the plaintiffs presented evidence that the accident occurred when an unsecured ladder slipped, they established a prima facie case under Labor Law § 240(1) (see, Kinsler v. Lu-Four Assocs., 215...