Sutherland v. City of New York

• Decision Date: 15 November 1999
• Docket Number: No. 1,No. 2,1,2
• Citation: Sutherland v. City of New York, 699 N.Y.S.2d 426, 266 A.D.2d 373 (N.Y. App. Div. 1999)
• Parties: Norrel SUTHERLAND, appellant-respondent, v. CITY OF NEW YORK, et al., respondents-appellants, et al., defendants, Ingersoll-Rand Company, defendant third-party plaintiff-respondent; Pile Foundation Construction Co., Inc., third-party defendant-respondent. (Action) Norrel Sutherland, appellant, v. Pile Foundation Construction Co., Inc., respondent. (Action)
• Court: New York Supreme Court — Appellate Division

Page 426

699 N.Y.S.2d 426

Norrel SUTHERLAND, appellant-respondent, v. CITY OF NEW YORK, et al., respondents-appellants, et al., defendants,

Ingersoll-Rand Company, defendant third-party plaintiff-respondent;

Pile Foundation Construction Co., Inc., third-party defendant-respondent. (Action No. 1)

Norrel Sutherland, appellant, v. Pile Foundation Construction Co., Inc., respondent. (Action No. 2)

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

Nov. 15, 1999.

Sanocki, Newman & Turret, LLP, New York, N.Y. (David B. Turret of counsel), for appellant-respondent in Action No. 1 and appellant in Action No. 2.

Jones, Hirsch, Connors & Bull, P.C., New York, N.Y. (Neil E. Higgins of counsel), for respondents-appellants in Action No. 1.

Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York, N.Y. (Nina Cangiano and Robert F. Martin of counsel), for third-party defendant-respondent in Action No. 1 and respondent in Action No. 2.

SONDRA MILLER, J.P., DAVID S. RITTER, WILLIAM C. THOMPSON and MYRIAM J. ALTMAN, JJ.

MEMORANDUM BY THE COURT.

In related actions to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of (1) an order of the Supreme Court, Kings County (R. Goldberg, J.), dated February 4, 1998, as (a) granted the cross motion of the defendant Pile Foundation Construction Co., Inc., to dismiss the complaint in Action No. 2, (b) granted those branches of the cross motion of the defendants City of New York, Department of Sanitation of the City of New York, and Department of Business Services of the City of New York which were to dismiss the causes of action pursuant to Labor Law §§ 240 and 241(6) asserted against them in Action No. 1, and (c) denied that branch of his cross motion which was to consolidate both actions, and (2) an order of the same court, dated September 14, 1998, as, upon reargument, adhered to stated portions of the prior order, and the defendants City of New York, Department of Sanitation of the City of New York, and Department of Business Services of the City of New York cross-appeal from (1) so much of the order, dated February 4, 1998, as (a) denied that branch of their cross motion which was to dismiss the cause of action pursuant to Labor Law § 200 asserted against them in Action No. 1, (b) granted the cross motion of the defendant Pile Foundation Construction Co., Inc., to dismiss the plaintiff's complaint in Action No. 2, and (c) granted that branch of the motion of the defendant Pile Foundation Construction Co., Inc., which was to dismiss the first cause of action in the third-party complaint for contribution and indemnification asserted against it by the defendant Ingersoll-Rand Company, and (2) so much of the order, dated September 14, 1998, as, upon reargument, adhered to that portion of the prior order which denied that branch of their cross motion which was to dismiss the cause of action pursuant to Labor Law § 200 asserted against them in Action No. 1.

ORDERED that the plaintiff's appeal from the order dated February 4, 1998, is dismissed, as that order was superseded by the order dated September 14, 1998, made upon reargument; and it is further,

ORDERED that the cross appeal by the defendants City of New York, Department of Sanitation of the City of New York, and Department of Business Services of the City of New York from so much of the order dated February 4, 1998, as denied that branch of their cross motion which was to dismiss the cause of action pursuant to Labor Law § 200 asserted against them in Action No. 1 is dismissed, as that portion of the order was superseded by the order dated September 14, 1998, made upon reargument; and it is further,

ORDERED that the cross appeal by the defendants City of New York, Department of Sanitation of the City of New York, and Department of Business Services of the City of New York from so much of the order dated February 4, 1998, as granted the cross motion of the defendant Pile Foundation Construction Co., Inc., to dismiss the plaintiff's complaint in Action No. 2 and granted that branch of the motion of the defendant Pile Foundation Construction Co., Inc., which was to dismiss the first cause of action in the third-party complaint for contribution and indemnification asserted against it by the defendant Ingersoll-Rand Company is dismissed, as these defendants are not aggrieved by those portions of the order (see, CPLR 5511); and it is further,

ORDERED that the order dated September 14, 1998, is modified, on the law, by deleting the provision thereof adhering to so much of the order dated February 4, 1998, as denied that branch of the cross motion of the defendants City of New York, Department of Sanitation of the City of New York, and Department of Business Services of the City of New York, which was for summary judgment dismissing the cause of action pursuant to Labor Law § 200 asserted against them in Action No. 1, and substituting therefor a provision granting that branch of the cross motion and dismissing the cause of action pursuant to Labor Law § 200 insofar as asserted against those defendants; as so modified, the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements, and the order dated February 4, 1998, is modified accordingly.

In or about May 1993, Pile Foundation Construction Co., Inc. (hereinafter Pile) entered into a contract with the City of New York for the rehabilitation of the 52nd Street Pier in Brooklyn. The work involved, among other things, driving wooden piles into the river bed. A crane located on, but not affixed to, a motorless barge was utilized for the pile-driving operation.

John Ciabattari, employed by Pile as the superintendent for the job, began work on the project in December 1993. The barge, which was owned by Pile, was not yet at the job site. It was brought to the pier in mid-December by tugboat. The crane was on the barge when it arrived. A device called a spotter was connected to the crane. The spotter was attached to a cable which was wound in a spool and operated by a winch motor mounted on the spotter. Ciabattari, who was responsible for safety at the job site, tested the equipment by running the cable in and out and checking the brake on the motor. Pile owned approximately 30 spotter/winch motors and Ciabattari's supervisor would generally decide which equipment to use on a particular job.

The pile-driving operation involved the crane operator, the spotter operator, and Ciabattari, who gave instructions from the pier. A wooden pile would be attached to the crane and the spotter operator would extend the cable until Ciabattari signaled that the pile was in the desired position. The spotter operator would then put the winch motor in neutral, engage the brake, walk to the end of the spotter and physically position the pile under the hammer, which was used to drive the pile. After the pile was down, the spotter operator would release the brake and bring the spotter back in.

The plaintiff Norrel Sutherland, a dock builder and welder, was hired by Pile in May 1994. During his first few weeks on the job, he performed welding work on the pier. On June 6 or 7, 1994, Ciabattari asked Sutherland if he had ever operated a winch motor. Although he had not, Sutherland indicated he would try. Ciabattari briefly instructed him on the use of the equipment and the hand signals the superintendent would utilize. Sutherland operated the spotter without incident until the morning of June 8, 1994.

That morning, as Sutherland was extending the spotter, the motor stopped. According to Sutherland, Ciabattari, and another Pile employee named Alex left the pier and came to assist him. Alex tapped both sides of the spotter with a hammer and used the hammer claw to pry the cable. The spotter restarted and worked properly. Sutherland was allegedly told that if the spotter stopped again, he should follow the same procedure. While he was positioning the next pile, the spotter stopped. When he bent over the motor to fix the problem as instructed, his glove caught in the cable, pulling his arm into the spool. He sustained serious injuries as a result of the accident for which he received workers' compensation benefits.

Sutherland subsequently commenced an action against the City of New York, the Department of Sanitation of the City of New York, the Department of Business Services of the City of New York (hereinafter collectively the City), Ingersoll-Rand Company (hereinafter Ingersoll), allegedly the manufacturer of the winch motor, and others. The complaint asserted causes of action for negligence, violations of the Labor Law, products liability, and breach of warranty. Ingersoll, in turn, commenced a third-party action against Pile. After Pile served a motion for summary judgment dismissing the third-party complaint, Sutherland commenced a separate action against Pile to recover damages for violation of the Jones Act (46 USC, Appendix § 688) and the Longshore and Harbor Workers' Compensation Act (hereinafter LHWCA) (33 USC § 901 et seq. ) and cross-moved, inter alia, to consolidate the two actions. Ingersoll then served an amended third-party complaint adding a second cause of action. The City cross-moved for summary judgment dismissing the complaint in the first action insofar as asserted against it. Finally, Pile cross-moved to dismiss Sutherland's direct action against it.

The Supreme Court granted Pile's motion and cross motion, concluding, insofar as is relevant to this appeal, that Pile, as Sutherland's compensation-paying employer, was immune from suit under the LHWCA and that Sutherland was also barred from maintaining an action against his employer under the Jones Act because, among other things, he was not a "seaman" within the meaning of the statute. The court granted the City's cross motion to the extent of dismissing Sutherland's Labor Law §§ 240 and 241(6) claims, but did not dismiss his ...