CESAR v. UNITED TECHNOLOGY OF NEW YORK

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

Julio CESAR, et al., Plaintiffs-Respondents, v. UNITED TECHNOLOGY OF NEW YORK, et al., Defendants-Appellants.

Alberto Anibal Lopez, Plaintiff-Respondent, v. United Technology of New York, et al., Defendants-Appellants.

Miguel Angel Lopez, Plaintiff-Respondent, v. United Technology of New York, et al., Defendants-Appellants.

Robert B. Tchodjuklian, Plaintiff-Respondent, v. United Technology of New York, et al., Defendants-Appellants.

Teresa S. Aparicio, etc., Plaintiff-Respondent, v. United Technology of New York, et al., Defendants-Appellants.

Decided: February 25, 1999

ROSENBERGER, J.P., ELLERIN, WILLIAMS and ANDRIAS, JJ. Saul Rudes, for Plaintiffs-Respondents. Kevin F. Cook, for Defendants-Appellants.

Order, Supreme Court, New York County (Edward Greenfield J.), entered May 1, 1998, which, to the extent appealed from as limited by the briefs, denied defendants' cross motion for summary judgment declaring that the court was without jurisdiction to adjudicate plaintiffs' admiralty claims, unanimously affirmed, without costs.

 Contrary to plaintiffs' arguments, the denial of defendants' cross motion is appealable as of right and defendants' claims are not barred by the doctrine of laches.   Turning, then, to the merits, we agree with the motion court that the record in its present state, consisting of little more than pleadings and other non-probative accounts of the underlying events, does not yet permit a declaration as to the existence or absence of the requisite factual predicate for admiralty jurisdiction (see, Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 537-538, 115 S.Ct. 1043, 130 L.Ed.2d 1024).   Defendants' argument to the contrary, that the helicopter involved in the underlying incident could not, as a matter of law, qualify as a vessel within the meaning of the Admiralty Extension Act (46 U.S.C., App. § 740), is not tenable (see, e.g., Offshore Logistics Inc. v. Tallentire, 477 U.S. 207, 218-219, 106 S.Ct. 2485, 91 L.Ed.2d 174;  see also, Icelandic Coast Guard v. United Technologies Corp., 722 F.Supp. 942, 946).  Nor can we accept defendants' contention that it is clear, as a matter of law, that the accident at issue did not occur on navigable waters, particularly since the jurisdictional locus requirement of the Admiralty Extension Act may be satisfied even when the complained of injury is suffered on land, provided only that the injury is caused by a vessel on navigable waters.   As the motion court aptly observed, the truth of jurisdictional allegations need not and, indeed, can not always be determined at the threshold of admiralty litigation, and, accordingly, it is neither unusual nor improper for parties such as plaintiffs herein to be permitted to establish jurisdiction for their admiralty claims at the outset of the case provisionally by means of a non-frivolous assertion of the jurisdictional elements (Grubart, supra, at 537-538, 115 S.Ct. 1043).  

We have examined defendants' other arguments and find them to be unpersuasive.

MEMORANDUM DECISION.