Pipia v Turner Constr. Co.

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Pipia v Turner Constr. Co. 2013 NY Slip Op 31696(U) July 12, 2013 Sup Ct, New York County Docket Number: 105381/2008 Judge: Milton A. Tingling Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED ON 712912013 [* 1] MOTION DATE MOTION SEQ. NO. .. 5z K JUL 29 2013 c ~ u CLERKS y ~ ~ OFFICE NEW YORK Dated: 1. CHECK ONE: 7/12 /J? ,J.S.C. ..................................................................... ........................... MOTION IS: GRANTED 3. CHECK IF APPROPRIATE: ................................................ 0SETTLE ORDER 2. CHECK AS APPROPRIATE: WN-FINAL DISPOSITION ED GRANTED IN PART OTHER 0SUBMIT ORDER UCIARY APPOINTMENT 0REFERENCE [* 2] SUPREME COURT OF THE STATE OF N E W YORK N E W YORK COUNTY PART 44 PRESENT: HON. MILTON A. TINGLING JOSEPH PIPIA, PLAINTIFF, INDEX NO. 105381/2008 M O T I O N DATE 8/27/12 -V- TURNER CONSTRUCTION COMPANY, T H E CITY OF N E W YORK, GOVERNOR S ISLAND PRESERVATION AND EDUCATION CORP., N E W YORK CITY ECONOMIC DEVELOPMENT CORPORATION, TREVCON CONSTRUCTION INC., AND J.E.S. PLUMBING & HEATING CORP. DEFENDANTS FILED Upon the foregoing papers, it is ordered that the motion to reargue is denied. JuL 29 2013 Plaintiff seeks a judgment that matters of fact and law were incorrectly found, overlooked and misapprehended by the court. On September 25, 2007, Plaintiff Joseph Pipia, a plumber for J.E.S. Plumbing and Heating Corporation ( JES ), was injured when he fell off a float stage. Plaintiff was working on a construction project to rehabilitate Yankee Pier in New York Harbor at Governor s Island, NY, NY. At the time of the incident, Plaintiff was standing on the float stage, located underneath the pier, installing insulation around piping supported from the bottom of the pier. A wave from a passing vessel rocked the float stage, causing Plaintiff to lose balance. Plaintiff grabbed a pipe hanger above him to keep from falling over the side of the float stage. His foot then slipped on the surface of the stage, tripping [* 3] into a hole in the float stage, where it became caught. He then fell on top of the stage, causing his injury. On April 15, 2008, Plaintiff filed a complaint against Turner Construction ( Turner ), The City of New York ( The City ) Governor s Island Preservation and Education Corporation ( GIPEC ), New York City Economic Development Corporation ( EDC ), Trevcon Construction, Inc. ( Trevcon ), and J.E.S. Plumbing & Heating Corp. ( JES ). In the complaint, Plaintiff alleged that Defendants had a duty to provide a safe working environment under Labor Law $5 220,240, and 241(6); and that the injuries sustained by Plaintiff were caused by the negligence of Defendants. Plaintiff moved for summary judgment against Defendants Tuner, GIPEC and Trevcon. Defendants cross-moved for summary judgment dismissing the complaint. The respective parties opposed the motions. On June 18, 2012, this court, denied Plaintiffs summary judgment and granted Defendants cross-motion. Pursuant to CPLR 222 1(d), a motion for reargument must be based upon matters of fact or law allegedly overlooked by or misapprehended by the court in determining the prior motion, but must not include any matters of fact not offered in the prior motion. A motion for reargument, addressed to the discretion of the court, is not to serve as a vehicle to permit the unsuccessful party to argue once again the very question previously decided. Nor does reargument serve to provide a party an opportunity to advance [* 4] arguments different from those tendered to the original application. Foley v. Roche, 4 18 N.Y.S.2d 588 (1 Dept. 1979). Plaintiff alleges the Court has made the following misapprehensions of law and fact, which must be corrected. In its previous ruling, the Court found that Defendant Trevcon employed Plaintiff when in actuality Defendant JES employed Plaintiff at the time of the injury. Also, the court erred in finding that GIPEC was not the owner of the property. The Court erroneously referred to the float stage as a barge, and misapplied the Longshore and Harbor Workers Compensation Act ( LHWCA ); which permits third party claims against non-employer tortfeasors under 33 USC under New York s Labor Laws, and under 33 USC 5 933, including claims 0 905(b). In arguing the court s misapplication of LHWCA, Plaintiff asserts the court ignored Cammon v. Ct ofNew York, 95 N.Y.2d 583 (2000), a necessary case to the iy underlying decision. Plaintiff alleges under the holding of Cammon, construction workers who received LHWCA benefits injured while constructing land based structures, while working on floating stages, are entitled to bring Labor Law claims against property owners and general contractors. Defendants allege Plaintiff has not met the burden imposed by CPLR 222 1(d). Defendants argue that Plaintiff s motion is based on de minimus typos, which had no impact on the legal outcome of the underlying motions. Also, the Court did not misapprehend the facts by referring to the float stage as a barge because the float stage [* 5] was properly classified as a barge pursuant to 20 CFR 5 1918, Consequently, the Court did not misapply any controlling principles of law when holding that the float stage was a vessel, and dismissing the complaint against Defendants. It is not necessary for the Court to decide this case under the purview of Camrnon because the float stage, regardless of whether or not it can be classified as a barge, can surely be classified as a vessel pursuant to section 902(3)(G) of LHCWA and Stewart v. Dutra, 543 U.S. 481. In Stewart, the court holds that to establish a meaning of vessel in maritime general law it only requires a watercraft be used or capable of being used as a means of transportation. Furthermore, it does not require that the watercraft be used primarily for that purpose, nor does it need to be in motion. In the case at hand, Plaintiff was on the float stage, in navigable waters, while installing insulation. Consequently, Plaintiff was on a vessel. Contrary to Plaintiffs assertions, the Court did not err in its finding that Plaintiffs remedies lie under LHCWA. The LHWCA clearly states, in section 905(b), that an action in negligence may be brought against a vessel and that such remedy shall be the exclusive of all other remedies against the vessel except remedies available under this chapter . Congress clearly intends that actions maintained against a vessel be brought solely within the confines of LHCWA. Lee v. Astoria Generating Co., L.P., 13 N.Y.3d 382. [* 6] Because the float stage can be classified as a vessel, the Court was well within its discretion to defer to LHCWA rather than local labor law. As a result, the Court rightfully dismissed the complaint against Defendant Trevcon pursuant to section 905(b) of LHCWA. Furthermore, unlike Cammon, which involved an injured worker receiving LHWCA benefits and seeking labor law liability solely against the defendant property owner, in this case the defendants The City, EDC, Trevcon and Turner are not the property owners. Also, the property owner, .GIPEC, has provided sufficient evidence that their ownership is not local in nature - one of the factors under Cammon the Court may consider when determining preemption. Given the historic nature and location of the property, and the prior two hundred years of operation by the U.S. Coast Guard and federal government, it is of both local and federal importance with far reaching implications. Given these facts, the Court rightfully dismissed the complaint against Defendants. The Court's error regarding Trevcon and GIPEC was immaterial and had no affect on the outcome of the underlying case FILED Based on the evidence provided, Plaintiff has failed to establish that the Court 3UL 29 2013 misapprehended material facts or the law such that the motion to reargue is denied. COUNTY CLERK'S OFFICE NEW YORK DATED: July 12,2013

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