| Ashjian v Orion Power Holdings, Inc. |
| 2010 NY Slip Op 00911 [70 AD3d 738] |
| February 9, 2010 |
| Appellate Division, Second Department |
| Arra Ashjian, Respondent-Appellant, v Orion PowerHoldings, Inc., et al., Defendants/Third-Party Plaintiffs-Respondents, et al., Defendant. ElliottTurbomachinery Co., Inc., et al., Third-Party Defendants-Appellants-Respondents. (AndAdditional Third-Party Actions.) |
—[*1] Sullivan, Papain, Block, McGrath & Cannavo, P.C., New York, N.Y. (Stephen C. Glasser,Frank V. Floriani, and Susan M. Jaffe of counsel), for respondent-appellant. Robin, Harris, King & Fodera (Mauro Goldberg & Lilling LLP, Great Neck, N.Y. [MatthewW. Naparty and Deborah F. Peters], of counsel), for defendants/third-partyplaintiffs-respondents.
In an action to recover damages for personal injuries, the third-party defendants ElliottTurbomachinery Co., Inc., and Elliott Company appeal, as limited by their brief, from so muchof an order of the Supreme Court, Kings County (Harkavy, J.), dated July 13, 2007, as grantedthat branch of the plaintiff's cross motion which was for leave to amend the complaint to assertcauses of action alleging violations of Labor Law § 240 (1) and § 241 (6) againstthe defendants/third-party plaintiffs, and denied that branch of their cross motion which was forsummary judgment dismissing the third-party cause of action for contractual indemnification,and the plaintiff cross-appeals, as limited by his brief, from so much of the same order as grantedthat branch of the motion of the defendants/third-party plaintiffs which was for summaryjudgment dismissing the cause of action alleging common-law negligence insofar as assertedagainst them, and denied that branch of his cross motion which was for leave to amend thecomplaint to assert a Labor Law § 200 cause of action against the defendants/third-partyplaintiffs.
Ordered that the order is modified, on the law, (1) by deleting the provision thereof denyingthat branch of the third-party defendants' motion which was for summary judgment dismissingthe third-party cause of action for contractual indemnification and substituting therefor aprovision granting that branch of the motion, and (2), by deleting the provision thereof grantingthat branch of the plaintiff's cross motion which was for leave to amend the complaint to assertcauses of action alleging violations of Labor Law § 240 (1) and § 241 (6) againstthe defendants/third-party plaintiffs and substituting therefor a provision denying that branch ofthe cross motion; as so modified, the order is affirmed insofar as appealed and cross-appealedfrom, with one bill of costs to the third-party defendants, payable by the plaintiff.[*2]
The plaintiff, an apprentice millwright employed by thethird-party defendants Elliott Turbomachinery Co., Inc., and Elliott Companies (hereinaftertogether Elliott), alleged that he was injured when he stepped into an unguarded, open hatch onthe deck of the barge Gowanus Bay No. 3 while overhauling a turbine housed thereon.He commenced this action against, among others, the owners of the barge, thedefendants/third-party plaintiffs Orion Power Holdings, Inc., Orion Power New York GP II, Inc.,Orion Power New York GP, Inc., Orion Power New York LP, Inc., Orion Power New York,L.P., LLC, Orion Power New York L.P., Orion Power Operating Services Astoria, Inc., andAstoria Generating Company, L.P. (hereinafter collectively the Orion entities), to recoverdamages for common-law negligence. The Orion entities asserted a third-party cause of actionagainst Elliott for, inter alia, contractual indemnification.
The Orion entities moved, among other things, for summary judgment dismissing thecomplaint insofar as asserted against them. Elliott cross-moved, inter alia, for summary judgmentdismissing the Orion entities' third-party cause of action for contractual indemnification. Theplaintiff separately cross-moved for leave to amend his complaint to assert causes of actionalleging violations of Labor Law §§ 200, 240 (1) and § 241 (6) against theOrion entities, among others. The court awarded summary judgment to the Orion entitiesdismissing the plaintiff's common-law negligence cause of action and denied the plaintiff's crossmotion for leave to amend the complaint to assert a Labor Law § 200 cause of actionagainst them, but granted that branch of the plaintiff's cross motion which was for leave toamend the complaint to assert Labor Law § 240 (1) and § 241 (6) causes of actionagainst them. The court also denied Elliott's cross motion for summary judgment dismissing theOrion entities' third-party cause of action for contractual indemnification. Elliott appealed andthe plaintiff cross-appealed. In a decision and order on motion dated February 11, 2009, thisCourt stayed the appeal and cross-appeal pending a decision by the Court of Appeals in Lee v Astoria Generating Co., L.P. (13NY3d 382 [2009]), which involved another Elliott employee who, in the course of the sameproject, was injured aboard the ship Gowanus Bay No. 1, which is part of the same groupof barges as the one on which the plaintiff allegedly was injured. Based on the Court of Appeals'decision in the Lee case, we modify.
In Lee, the Court of Appeals determined that a barge similar to the one in questionhere was a "vessel" within the meaning of federal maritime law (id. at 390-391, citingStewart v Dutra Constr. Co., 543 US 481, 489 [2005]; 1 USC § 3), and that,therefore, the federal Longshore and Harbor Workers' Compensation Act (hereinafter theLHWCA; 33 USC § 901 et seq.) applied to work injuries occurring thereon(see Lee v Astoria Generating Co., L.P., 13 NY3d at 391-392).
The LHWCA provides that, where it applies, an injured worker's employer "shall not beliable to the vessel for . . . damages directly or indirectly and any agreements orwarranties to the contrary shall be void" (33 USC § 905 [b]; see Fragedis v FarrellLines, 64 NY2d 987, 988 [1985]; Hartley v City of New York, 228 AD2d 646, 647[1996]; Colamarino v City of New York, 166 AD2d 404, 405-406 [1990]). Since thebarge Gowanus Bay No. 3 is a vessel within the meaning of federal maritime law and theLHWCA, and since the LHWCA prohibits indemnification actions against an injured worker'semployer, the court erred in denying that branch of Elliott's motion which was for summaryjudgment dismissing the Orion entities' third-party cause of action for contractualindemnification against it.
The Court of Appeals further held that the LHWCA preempted causes of action under LaborLaw § 240 (1) and § 241 (6) (see 33 USC § 905 [b]; Lee v AstoriaGenerating Co., L.P., 13 NY3d at 391-392). Accordingly, the plaintiff should not have beengranted leave to amend his complaint to assert causes of action under Labor Law § 240 (1)and § 241 (6) against the Orion entities.
With respect to the plaintiff's common-law negligence cause of action, where the allegedinjuries are caused by a dangerous premises condition liability for common-law negligence willattach only if the owner has control over the work site and actual or constructive notice of thedangerous condition (see Gallello vMARJ Distribs., Inc., 50 AD3d 734, 735 [2008]). Since the plaintiff's injuries arose outof an allegedly dangerous condition on the barge (see LaGiudice v Sleepy's Inc., 67 AD3d 969 [2009]), the plaintifffailed to rebut the Orion entities' prima facie showing that they did not have actual orconstructive notice of the condition (see Gordon v American Museum of NaturalHistory, 67 NY2d 836, 837 [1986]; Gonzalez v Jenel Mgt. Corp., 11 AD3d 656 [2004]) and, thus, hefailed to raise [*3]a triable issue of fact.
Accordingly, the Supreme Court properly awarded summary judgment to the Orion entitiesdismissing the cause of action based on common-law negligence insofar as asserted againstthem. Since Labor Law § 200 simply codifies the common-law duty to provide a safeplace to work, it follows that the Supreme Court properly denied that branch of the plaintiff'scross motion which was for leave to amend the complaint to assert a Labor Law § 200cause of action against the Orion entities (see Hunter v R.J.L. Dev., LLC, 44 AD3d 822, 825 [2007];Eriksen v Long Is. Light. Co., 236 AD2d 439, 440 [1997]). Rivera, J.P., Dickerson,Chambers and Hall, JJ., concur. [Prior Case History: 16 Misc 3d 1115(A), 2007 NY Slip Op51425(U).]