Rigopoulos v. State

• Decision Date: 10 February 1997
• Citation: Rigopoulos v. State, 653 N.Y.S.2d 667, 236 A.D.2d 459 (N.Y. App. Div. 1997)
• Parties: Dimitrios RIGOPOULOS, et al., Appellants-Respondents, v. STATE of New York, Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 667

653 N.Y.S.2d 667

236 A.D.2d 459

Dimitrios RIGOPOULOS, et al., Appellants-Respondents, v.STATE of New York, Respondent-Appellant.

Supreme Court, Appellate Division Second Department.

Feb. 10, 1997.

Abbarno, McLaughlin & Kedzielawa, Buffalo, (Frank S. Kedzielawa, of counsel), for appellants-respondents.

Ahmuty, Demers & McManus, Albertson, (Christopher Kendric on the brief), for respondent-appellant.

Before MANGANO, P.J., and O'BRIEN, COPERTINO and PIZZUTO, JJ.

MEMORANDUM BY THE COURT.

In a claim to recover damages for personal injuries, etc., the claimants appeal, as limited by their brief, from so much of a judgment of the Court of Claims (Silverman, J.), dated June 8, 1995, as limits the award to Dimitrios Rigopoulos to the principal sum of $80,023.08 and the award to Victoria Rigopoulos to the principal sum of $5,000.The defendant cross-appeals, as limited by its brief, from so much of the judgment as is in favor of the claimants on the issue of liability.The defendant's notice of cross appeal from an order of the same court entered January 21, 1994, which denied the defendant's motion to dismiss the claim for lack of subject matter jurisdiction and granted the claimants' cross motion for summary judgment on the issue of liability pursuant to Labor Law § 240(1), and from the interlocutory judgment dated February 4, 1994, entered upon the order, is deemed a premature notice of cross appeal from the judgment (see, CPLR 5520[c] ).Presiding Justice Mangano has been substituted for the late Justice Hart (see, 22 NYCRR 670.1[c] ).

ORDERED that the judgment is reversed, on the law, the interlocutory judgment and order are vacated, the defendant's motion to dismiss so much of the claim as is based on Labor Law § 240(1) is granted, and the claimants' cross motion for summary judgment on the issue of liability is denied; and it is further,

ORDERED that the claim is remitted to the Court of Claims for a de novo determination of the issues of liability pursuant to Labor Law § 200(1)and§ 241(6); and it is further,

ORDERED that in the event that the Court of Claims finds the defendant to be liable, the damages award shall be reinstated; and it is further,

ORDERED that any award of costs shall abide the event of the new trial.

The claimantDimitrios Rigopoulos(hereinafter Rigopoulos) was employed by an independent contractor hired by the defendant to sandblast and paint the underside of the Robert Moses Causeway Bridge over the Great South Bay in Suffolk County.The work was performed from a floating barge provided by the contractor which was tied to the piers of the bridge.Rigopoulos used a stepladder which rested on the barge while he was painting the bridge.He fell as he descended the ladder and landed on the barge.

The defendant moved for summary judgment dismissing the claim on the ground that the claim, which was based on allegations of violations of the Labor Law, was preempted by the Longshore and Harbor Workers' Compensation Act(33 U.S.C. § 901 et seq.), and the claimants cross-moved for summary judgment on the issue of liability under Labor Law § 240(1).The court denied the defendant's motion and granted the claimants partial summary judgment on the issue of liability under Labor Law § 240(1)(see, Rigopoulos v. State of New York, 159 Misc.2d 1109, 608 N.Y.S.2d 378).

After a trial on damages, the court awarded Rigopoulos the principal sum of $80,023.08 and awarded his wife the principal sum of $5,000 on her derivative claim.

We agree with the defendant that so much of the claim as was based on Labor Law § 240(1) should have been dismissed.The accident occurred on navigable waters, and the work performed by Rigopoulos, that is, repairing a bridge from a floating barge, constituted traditional maritime activity.Thus, the issue of liability is governed by the principles of Federal maritime law (see, Tompkins v. Port of New York Auth., 217 A.D.2d 269, 272, 638 N.Y.S.2d 94;Torres v. City of New York, 177 A.D.2d 97, 581 N.Y.S.2d 194, cert. denied507 U.S. 986, 113 S.Ct. 1584, 123 L.Ed.2d 151;see also, Hotchkiss v. State of New York, 228 A.D.2d 413, 643 N.Y.S.2d 650).Under Federal maritime law, the defendant may be held liable to the claimant only upon proof of actual negligence.Therefore, Labor Law § 240(1), which imposes strict liability for its breach, may not serve as the basis for tort liability here (see, Tompkins v. Port of New York 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).However, Labor Law § 200(1)and§ 241(6) do not impose strict liability for their breach (see, Ross v. Curtis-Palmer Hydro-Electric Co., 81 N.Y.2d 494, 601 N.Y.S.2d 49, 618 N.E.2d 82;Zimmer v....