Stuto v. Coastal Dry Dock & Repair Corp.

• Decision Date: 25 September 1989
• Citation: 153 A.D.2d 937,545 N.Y.S.2d 743
• Court: New York Supreme Court — Appellate Division
• Parties: , 1990 A.M.C. 81 Louis STUTO, Plaintiff-Respondent, v. COASTAL DRY DOCK & REPAIR CORP., Defendant third-party Plaintiff-Appellant-Respondent, et al., Defendant, G & M Metal Fabricating Corp., third-party Defendant-Appellant.

Page 743

545 N.Y.S.2d 743

153 A.D.2d 937, 1990 A.M.C. 81

Louis STUTO, Plaintiff-Respondent, v. COASTAL DRY DOCK & REPAIR CORP., Defendant third-party Plaintiff-Appellant-Respondent, et al., Defendant G & M Metal Fabricating Corp., third-party Defendant-Appellant.

Supreme Court, Appellate Division Second Department.

Sept. 25, 1989.

John J. Wrenn, New York City (Michael Wolpinsky, of counsel), for defendant third-party plaintiff-appellant-respondent.

Benjamin J. Sergi, P.C., Brooklyn, (William N. Mairs, Jr., of counsel), for third-party defendant-appellant.

Levenson, Pressman, Elhilow & Gary, Brooklyn (Joseph M. Elhilow, of counsel), for plaintiff-respondent.

Before MOLLEN, P.J., and BRACKEN, KUNZEMAN and ROSENBLATT, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, the defendant and third-party plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (I. Aronin, J.), entered May 3, 1988, as denied its cross motion for summary judgment dismissing the complaint insofar as it is asserted against it, and the third-party defendant appeals from so much of the same order as denied its cross motion to dismiss the third-party complaint.

ORDERED that the order is modified, by deleting the fifth decretal paragraph thereof and substituting therefor a provision granting that branch of the defendant third-party plaintiff's cross motion which was to dismiss the plaintiff's second cause of action alleging a violation of the New York State Labor Law insofar as it is asserted against it; as so modified, the order is affirmed, without costs or disbursements.

On December 7, 1982, while removing duct work approximately six and one-half feet above the floor of the "radio central" area of the "U.S.S. Koelsch" which was in dry dock at the Brooklyn Navy Yard, the plaintiff, a sheet-metal mechanic employed by the third-party defendant G & M Metal Fabricating Corp. (hereinafter G & M), fell off a chair and struck his head, sustaining serious injuries. The United States Navy had contracted with the defendant third-party plaintiff Coastal Dry Dock and Repair Corp. (hereinafter Coastal) to perform certain repair work aboard the vessel. Coastal subcontracted the sheet metal work to G & M. After receiving Workers' Compensation benefits from his employer, the plaintiff instituted this action, inter alia, against Coastal alleging damages sustained as a result of Coastal's negligence. He also alleged that Coastal had violated provisions of the New York State Labor Law. Coastal then commenced a third-party action against G & M for indemnification based on the existence of a contract which contained an indemnity provision in favor of Coastal.

G & M sought dismissal of the third-party complaint on the ground that under the Federal Longshoremen's and Harbor Workers' Compensation Act (hereinafter LHWCA; 33 U.S.C. § 901, et seq.), the plaintiff's employer cannot be sued in a third-party action. In an order dated December 23, 1985, the Supreme Court (Vaccaro, J.), denied the motion based on the written contract between Coastal and G & M. No appeal from this order was taken.

The plaintiff thereafter moved for summary judgment. Coastal cross-moved for summary judgment dismissing the complaint and all cross claims against it. G & M also cross-moved for summary judgment dismissing the third-party complaint. The Supreme Court (I. Aronin, J.), in the order appealed from, denied all the motions.

The parties do not dispute Justice Vaccaro's determination that the plaintiff's injury occurred during the course of maritime employment as defined in 33 U.S.C. § 902 (Vargas v. American Export Lines, 107 A.D.2d 349, 486 N.Y.S.2d 196) and that even though this action was commenced in a State court, Federal maritime law rather than New York law governs (see, Vargas v. American Export Lines, supra; Magno v. Waterman S.S. Lines, 89 A.D.2d 958, 454 N.Y.S.2d 105). However, Coastal and G & M contend that the application of Federal maritime law, which imposes a standard of reasonable care, and the doctrine of comparative negligence, require the dismissal of the plaintiff's cause of action based on the New York State Labor Law, because Coastal could be held strictly liable under that cause of action. We agree.

Although "there are numerous instances in which the general maritime law has been modified or supplemented by state action, as e.g., in creating liens for repairs or supplies furnished to a vessel in her home port [w]ith respect to maritime torts we have held that the state may modify or supplement the maritime law by creating liability which a court of admiralty will recognize and enforce when the state action is not hostile to the characteristic features of the maritime law or inconsistent with federal legislation" (Just v. Chambers, 312 U.S. 383, 388, 61 S.Ct. 687, 691, 85 L.Ed. 903).

For example, Federal maritime law has been held not to preclude a cause of action under State law to recover damages for wrongful death (see, Hess v. United States, 361 U.S. 314, 80 S.Ct. 341, 4 L.Ed.2d 305), for benefits under a State Workers' Compensation Act (see, Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715, 100 S.Ct. 2432, 65 L.Ed.2d 458, reh. denied 448 U.S. 916, 101 S.Ct. 37, 65 L.Ed.2d 1179; Calbeck v. Travelers Insurance Co., 370 U.S. 114, 82 S.Ct. 1196, 8 L.Ed.2d 368; Davis v. Department of Labor and Industries, 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246, reh. denied 317 U.S. 713, 63 S.Ct. 438, 87 L.Ed. 567) or for the loss of society due to a maritime injury (see, American Export Lines, Inc. v. Alvez, 446 U.S. 274, 100 S.Ct. 1673, 64 L.Ed.2d 284).

"[S]tate law may supplement maritime law when maritime law is silent or where a local matter is at issue, but state law may not be applied where it would conflict with maritime law" (Floyd v. Lykes, Bros. S.S. Co., Inc., 844 F.2d 1044, 1047). The facts of this case are similar to those found in Robins Dry Dock Co. v. Dahl, 266 U.S. 449, 45 S.Ct. 157, 69 L.Ed. 372 where the United States Supreme Court held that since the tort suffered by the plaintiff was maritime and not of mere local concern, the rights and liabilities of the parties arose out of and depended upon the general maritime law and could not be enlarged or impaired by State statute. Although the Robins Dry Dock case was decided prior to the enactment of the 1972 amendment of the LHWCA, the legislative history of the amendment and subsequent case law have not diminished its authority (see, Hess v. United States, supra, at 326, 80 S.Ct. at 349 [dissenting opinion of Harlan, J.], McFall v. Compagnie Maritime Belge [Lloyd Royal] S.A., 304 N.Y. 314, 107 N.E.2d 463; Riley v. Agwilines, Inc., 296 N.Y. 402, 73 N.E.2d 718; Cwick v. City of Rochester, 107 A.D.2d 1072, 486 N.Y.S.2d 547).

The legislative history of the 1972 amendment to the LHWCA supports a...