OLSEN v. D'Onofrio General Contracting Corp., et al., Defendants-Appellants. (2005)

Order, Supreme Court, New York County (Alice Schlesinger, J.), entered February 4, 2004, which, to the extent appealed from, denied appellants' cross motion insofar as it sought summary judgment dismissing plaintiff's claims against them and summary judgment upon their cross claims for indemnification and contribution, granted plaintiff's cross motion seeking summary judgment as to liability as against appellants on his Labor Law § 240(1) claim, and granted the motion of defendants-respondents Reinauer and Reicon for summary judgment insofar as to dismiss appellants' cross claims against them for contribution, unanimously modified, on the law, to deny defendants-respondents' motion insofar as it sought dismissal of appellants' contribution cross claims, and those claims reinstated, and otherwise affirmed, without costs.

Plaintiff, an employee of Reicon/Reinauer, was injured while aboard a barge, leased by his employer, performing work in furtherance of the excavation, rehabilitation and repair of the Con Edison-leased East 14th Street pier.   While assisting a co-worker open a sliding door, plaintiff stepped onto plywood covering a hole in the center of the barge, the plywood slid from under him and he fell into the hole.   Plaintiff received Federal Workers' Compensation benefits under the Longshore and Harbor Workers' Compensation Act (LHWCA) ( 33 USC § 901 et seq.).

 In this action, plaintiff alleges both State Labor Law and Federal LHWCA violations.   It is plain, since the accident occurred in navigable waters and plaintiff, an LHWCA-covered employee, was in fact awarded benefits under that Act, that this case is governed by federal maritime law (see Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 540, 115 S.Ct. 1043, 130 L.Ed.2d 1024 [1995];  Tompkins v. Port of New York Auth., 217 A.D.2d 269, 270, 638 N.Y.S.2d 94 [1996] ).   However, “[t]he fact that Federal maritime law is involved does not necessarily mean that State law is superseded” (Cammon v. City of New York, 95 N.Y.2d 583, 587, 721 N.Y.S.2d 579, 744 N.E.2d 114 [2000] );  “the exercise of admiralty jurisdiction ․ does not result in the automatic displacement of state law” (Jerome B. Grubart, Inc., 513 U.S. at 545, 115 S.Ct. 1043;  accord Yamaha Motor Corp., USA v. Calhoun, 516 U.S. 199, 206, 116 S.Ct. 619, 133 L.Ed.2d 578 [1996] ).   Here, the LHWCA should not pre-empt plaintiff's Labor Law claims (see Cammon v. City of New York, 260 A.D.2d 70, 700 N.Y.S.2d 110 [1999], affd. 95 N.Y.2d 583, 721 N.Y.S.2d 579, 744 N.E.2d 114 [2000] ). The claims against Con Edison, the lessee of the pier, and D'Onofrio, its general contractor, do not involve a maritime commercial transaction, and permitting their assertion would pose no “threat to the uniformity of Federal maritime law sufficient to displace application of an important State health and safety measure” (Cammon, 95 N.Y.2d 583, 590, 721 N.Y.S.2d 579, 744 N.E.2d 114;  cf. Emanuel v. Sheridan Transp. Corp., 10 A.D.3d 46, 779 N.Y.S.2d 168 [2004] ).

 Partial summary judgment as to liability in favor of plaintiff on his Labor Law § 240(1) claim was appropriate.   Plaintiff, while engaged in work necessary and incidental to the excavation and repair of the East 14th Street Pier, was exposed to a gravity-related risk without being provided proper safety devices (see Campisi v. Epos Contr. Corp., 299 A.D.2d 4, 747 N.Y.S.2d 218 [2002] ).

 Also correct was the motion court's denial of summary judgment dismissing plaintiff's Labor Law § 241(6) claim.   Contrary to appellants' contention, Industrial Code (12 NYCRR) § 23-1.7(b)(1), requiring that every hazardous opening into which a person may step or fall be guarded by a substantial cover fastened in place or by a safety railing, is sufficiently concrete in its specification to support the claim (see Messina v. City of New York, 300 A.D.2d 121, 122, 752 N.Y.S.2d 608 [2002];  O'Connor v. Lincoln Metrocenter Partners, L.P., 266 A.D.2d 60, 61-62, 698 N.Y.S.2d 632 [1999];  Boss v. Integral Constr. Corp., 249 A.D.2d 214, 215, 672 N.Y.S.2d 92 [1998] ).

 As to plaintiff's Labor Law § 200 and common-law negligence claims, material issues of fact exist as to whether Con Edison was, in consequence of its construction manager's inspection of the barge prior to the accident, on notice of the alleged hazard, and thus as to whether it is answerable for failing to remedy the hazard and maintain a safe workplace (see Dilena v. Irving Reisman Irrevocable Trust, 263 A.D.2d 375, 376, 692 N.Y.S.2d 371 [1999];  Higgins v. 1790 Broadway Assocs., 261 A.D.2d 223, 691 N.Y.S.2d 31 [1999] ).

 The LHWCA, which works as a strict liability statute, is the maritime worker's exclusive remedy against his employer (33 USC § 905 [a] ).   Once an employer fulfills its obligations by paying benefits to the injured LHWCA employee, further contribution from the employer solely in its capacity as employer, in distinction to its capacity as vessel owner, is foreclosed (Lopez v. Oldendorf, 545 F.2d 836, 839-840 [1976], cert. denied 431 U.S. 938, 97 S.Ct. 2650, 53 L.Ed.2d 256 [1977];  see also Triguero v. Consolidated Rail Corp., 932 F.2d 95, 98 [1991];  Pennisi v. Std. Fruit & S.S. Co., 206 A.D.2d 290, 291, 614 N.Y.S.2d 519 [1994] ).   This, however, does not foreclose a third-party claim for contribution from an employer/vessel owner for negligence in the latter capacity (Tran v. Manitowoc Eng'g Co., 767 F.2d 223 [1985] ).   Accordingly, inasmuch as there is a triable issue as to whether plaintiff's harm was attributable to negligence by defendants Reicon and Reinauer in the discharge of vessel-owner duties, the contribution cross claims against them should be reinstated.

 With respect to the indemnity cross claims, the LHWCA does not foreclose actions for indemnity so long as the claim is based on contract or an implied right to indemnification (Pennisi, 206 A.D.2d 290, 293, 614 N.Y.S.2d 519).   However, an explicit indemnification clause entitling appellants to the indemnification they seek does not exist, and appellants' right to indemnification by implication has not been established at this juncture.

We have considered appellants' remaining arguments and find them unavailing.