Ashjian v Orion Power Holdings, Inc.

[*1] Ashjian v Orion Power Holdings, Inc. 2007 NY Slip Op 51425(U) [16 Misc 3d 1115(A)] Decided on July 13, 2007 Supreme Court, Kings County Harkavy, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through October 26, 2009; it will not be published in the printed Official Reports.

Decided on July 13, 2007
Supreme Court, Kings County

Arra Ashjian, Plaintiff,

against

Orion Power Holdings, Inc., et. al, Defendants. Orion Power Holdings, Inc., et. al, Third-Party Plaintiffs, - against- Elliott Turbomachinery Co., Inc., et. ano, Third-Party Defendants. Orion Power Holdings, Inc., et. al, Second Third-Party Plaintiffs, - against- JSI Service Corp., Second Third-Party Defendants. JSI Service Corp., Fourth-Party Plaintiff, Petrotech, Inc., Reliant Energy, et. al, Fourth-Party Defendants. Petrotech, Inc., Fifth-Party Plaintiff, Amertech Industries, Inc., et. ano, Fifth-Party Defendants.



7115/03



Sullivan, Papain, Block, McGrath & Cannavo, P.C.

Attorneys for Plaintiff Arra Ashjian

120 Broadway

New York, New York 10271

(212)732-9000

McElroy, Deutsch, Mulvaney & Carpernter, LLP

Attorneys for Second-Third-Party Defendant/

Fourth Party Plaintiff,

JSI SERVICE CORP.

88Pine Street, 24th Floor

New York, New York 10005

(212) 483-9490

Cerussi & Spring

Attorneys for Defendant/Fourth Party Defendant

PETROTECH, INC.

One North Lexington Avenue

White Plains, New York 10601

(914) 948-1200

Lester, Schwab, Katz & Dwyer

Attorneys for Third-Party Defendants/

Fourth Party Defendants

ELLIOTT TURBOMACHINERY CO., INC. and ELLIOTT COMPANY

120 Broadway

New York, New York 10277 (212) 964-6611

Rubin, Fiorella & Friedman LLP

Attorneys for Fifth-Party Defendant

AMERITECH INDUSTRIES, INC.

292 Madison Avenue

New York, New York 10017

(212) 953-2381

Robin, Harris, Kings, Yuhas, Fodera & Richman

Counsel for Defendants/Third Party Plaintiffs/

Second 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 LP, LLC, ORION POWER NEW YORK L.P.,

ORION POWER OPERATING SERVICES ASTORIA, INC.,

ASTORIA GENERATING COMPANY L.P.

One Battery Park Plaza, 30th Floor

New York, New York 10004

(212) 487-9701

Ira B. Harkavy, J.

Upon the foregoing papers, defendants/third-party plaintiffs/second third-party plaintiffs Orion Power Holdings, Inc., Orion Power New York GP II, Inc., Orion Power New York LP, Inc., Orion Power New York LP, LLC, Orion Power New York LP., Orion Power Operating Services Astoria Inc., and Astoria Generating Company, LP. (Orion) move, pursuant to CPLR 3212, for summary judgment dismissing the complaint of plaintiff Arra Ashjian (plaintiff) or, in the alternative, for summary judgment against defendant/third-party plaintiff/fourth-party defendant/fifth-party plaintiff Petrotech, Inc. (Petrotech) for common law negligence, breach of contract for failure to procure liability insurance, contractual indemnification and an order directing Petrotech to assume the defense of and to pay attorney's fees of Orion, and for summary judgment against third-party defendants/fourth-party defendants Elliott Turbomachinery Co., Inc. and Elliott Company (Elliott) for breach of contract for failure to procure liability insurance and contractual indemnification and for an order directing Elliott to assume the defense of and pay the attorney's fees of Orion. Petrotech moves, pursuant to CPLR 3212, for summary judgment dismissing the complaint of plaintiff, the fourth-party complaint of second third-party defendant/fourth-party plaintiff/fifth-party defendant JSI Service Corp. (JSI), and any and all cross claims and counterclaims asserted against Petrotech, and for conditional common law indemnification against JSI and fifth-party defendant Amertech Industries, Inc. (Amertech). Amertech moves for summary judgment dismissing the fifth-party complaint of Petrotech and all cross claims asserted against Amertech or, in the alternative, dismissing the fifth-party complaint on the ground that Petrotech has failed to provide complete responses to Amertech's notice for discovery and inspection dated May 19, 2006, and to dismiss the cross claim of Orion for its failure to produce Emmet Facquet for a deposition in violation of this court's order dated April 20, 2006. Elliott moves for summary judgment dismissing the complaint of plaintiff, the third-party complaint of Orion, the fourth-party complaint of JSI, and all cross claims and counterclaims asserted against it. Plaintiff cross-moves, pursuant to CPLR 3025, for leave to amend his complaint to assert claims under Labor Law §§ 240 (1) and 241(6), and 200.

Facts and Procedural History[*2]

On February 27, 2001, plaintiff sustained injuries to his right knee when he fell into an open manhole on a barge during a gas conversion project. The barge was designated as the Gowanus Unit 3-7 of the Gowanus Power Generating Facility (the Gowanus Facility). The Gowanus Facility is located at 29th Street and 2nd Avenue, in Brooklyn. It is a floating gas turbine generation station or power plant, owned by Orion, consisting of seven floating barges in the Gowanus Canal. Gowanus Bay 3, or Gowanas Unit 3-7, is one of four barges holding eight gas turbines generators, while the remaining three barges hold fuel.[FN1] Four of the barges are numbered 1, 2, 3, and 4, and the other three barges are designated Clean Energy 1, 2 and 4. "Gas Turbine Gowanus 1 and Gas Turbine Gowanus 2 are on the south and west end of the pier . . . and Gowanus Bay 3 and 4 are on the north and west end of the pier." The remaining three fuel barges are on the other side of the pier. Gowanus Bay 3 floats, but is tied down or "positioned with the pier" in that "there is a spud-beam connection at two ends of the barge, which holds them in position." The power barges (the barges which do not hold fuel) were described as being "moored or tied up at the station permanently . . . they are not barges that you take in and out." Further, the barge "goes to a shipyard for repairs on a ten to fifteen year cycle, and in 1996 [it] and Gowanus Bay 4 were taken from [the Gowanus Facility] to Astoria to provide contingency power."

Prior to the accident, Orion hired Petrotech to serve as the general contractorto upgrade the control systems on the turbine generators on the barges and to convert the generators from single fuel to dual fuel capacity. Thereafter, Petrotech hired Amertech, which was responsible for mechanical and electrical work. Amertech hired JSI, which was responsible for wiring. Elliott, plaintiff's employer, was responsible for turbine and machinery overhauls. Specifically, Elliott had been hired by Orion to rebuild a turbine generator and to perform a gas conversion.

Plaintiff testified at his deposition that he was employed by Elliott as a second-year apprentice millwright, or field machinist. Field machinists worked on heavy industrial machinery, conveyors in airports, conveyor turbines, and drawbridges. On the day of the accident, plaintiff was working on a turbine generator located on Unit Deck 3-7. Plaintiff testified that he first had to remove the cover to the turbine generator. Then, anticipating items he and his foreman (Doug) would need for their work, he began "walking back and forth" setting up the air tools and turning the compressor on, which was on "dry land" off the barge. When plaintiff returned to the barge, his foreman told him to turn on the valves of the compressor. Plaintiff began to walk off the barge to "set up the air tools," but on his way, he fell into the open manhole/hatch in front of turbine Unit 3-7.[FN2] Plaintiff explained that he [*3]"walked and . . . saw these two guys and I just went like this to them [said "what's up"] and they not one utterance and the next thing I knew, I was in up to here [the thigh area] in a manhole." The hole into which he fell was approximately two feet in diameter and was round. Plaintiff struck his knee on one of the rungs of a ladder which was affixed to the inside of the hatch. Plaintiff said the "Carhardt" suit he was wearing (a jump suit or a jacket for the whole body), as well as the ladder inside the hatch, prevented him from falling all the way down the hatch. Plaintiff's body did not come into contact with the hatch. The hatch opened to the left as plaintiff walked toward it. The accident occurred at 7:30 A.M.

Plaintiff testified that the two men standing near the hatch worked for Petrotech because the following day, a foreman from Petrotech, who wore a Petrotech company label on his shirt, told plaintiff that his crew had left the hatch open, that "his guys had messed up," and that he was sorry about plaintiff's accident.

On the day of the accident, plaintiff had arrived at the barge at 6:00 A.M. and had walked by the manhole/hatch at least six times, but the hatch was closed during those occasions.The accident report filled out by plaintiff's foreman said that plaintiff fell in a manhole that did not have ropes or caution markings. Plaintiff is five foot eleven inches and on the day of the accident, he weighed approximately 237 pounds.

One-half hour after the accident. Mr. Potenzieri, an "environmental" employee of Orion/Astoria at the time of the accident,[FN3] conducted an investigation of the accident scene. He noticed an open hatch and evidence of some "reddish orange" barricade tape. He said there was tape on the handrails near the turbine unit, but did not know if it had been placed there after the accident.

Plaintiff was awarded workers' compensation benefits from the State of New York Workers' Compensation Board, by decision filed August 22, 2001.

By summons and complaint dated February 24, 2003, under Index No. 7115/03, plaintiff brought an action against Orion, Reliant Energy Development Services, Inc. and various other Reliant defendants (Reliant) alleging negligence.[FN4] Thereafter, by summons and [*4]complaint dated October 8, 2003, under Index No. 117572/03, plaintiff brought an action against Astoria Generating Company, LP (Astoria), alleging negligence. On or about November 6, 2003, under Index No. 117572/03, plaintiff filed a supplemental summons and amended summons and complaint against Astoria and Petrotech. These actions were consolidated on or about January 10, 2005. On or about September 9, 2003, Orion and Astoria commenced a third-party action against Elliott, seeking breach of contract for negligence, and contractual indemnification.[FN5] On or about September 22, 2004, Orion commenced a second third-party action against JSI, seeking common-law and contractual indemnification. On or about November 19, 2004, JSI commenced a fourth-party action against Petrotech, Reliant, and Elliott, seeking common-law indemnification. On or about April 7, 2005, Petrotech commenced a fifth-party action against Amertech and JSI, seeking contribution, common-law indemnification, contractual indemnification and damages for breach of contract for failure to procure liability insurance. On March 2, 2005, plaintiff filed a note of issue. Discovery continued beyond March 2, 2005, and by order of this court, dated April 20, 2006, the end date for discovery, including the making of summary judgment motions, was August 6, 2006.

Cross Motion of Plaintiff to Amend

Plaintiff cross-moves to amend his complaint[FN6] to assert claims under Labor Law §§ 240 (1), 241(6), and 200 against Orion, owner of the subject barge, and Petrotech, the general contractor.[FN7]

Elliott opposes, arguing that Labor Law §§ 240 (1) and 241(6) are preempted by The Longshore and Harbor Workers' Compensation Act (LHWCA), which, it contends, is plaintiff's exclusive remedy against Orion. Elliott also argues that Labor Law § 240(1) is inapplicable to the facts because plaintiff's accident was not gravity-related; that plaintiff's claim under Labor Law § 241(6) is not viable since, among other things, plaintiff was not engaged in "construction, excavation or demolition work" as those terms are defined in the statute; and that plaintiff's Labor Law § 200 is without merit since Orion, owner of the subject barge, did not supervise or control plaintiff's work. Petrotech also opposes, arguing that granting the amendment will cause it undue prejudice since it was denied the opportunity to depose the relevant witnesses regarding "the additional elements" of the proposed [*5]Labor Law causes of action. Reliant opposes the cross motion as well, claiming that discovery proceedings were stayed with the filing of the instant summary judgment motions; that plaintiff's motion is untimely, and was made on the eve of trial without excuse for the delay; and that it would be gravely prejudiced because it prepared a defense and chose certain strategies which it might have foregone had plaintiff alleged violations of the Labor Law.

Plaintiff, in opposition, argues that he has viable Labor Law claims; that even assuming the LHWCA applies, it does not preempt his Labor Law claims; that motions to amend are freely granted, and that the proposed amendments are timely and will not prejudice defendants.

"Leave to amend pleadings shall be freely given' in the absence of prejudice or surprise to the opposing party" (Public Adm'r v Hossain Constr. Corp., 27 AD3d 714 [2006], citing CPLR 3025[b]), and "[w]here the documentary evidence submitted in support of the motion indicates that proposed amendment to the complaint may have merit" (Holchendler v We Transp., Inc., 292 AD2d 568, 569 [2002]). "Prejudice . . . is not found in the mere exposure of the defendant to greater liability. Instead, there must be some indication that the defendant has been hindered in the preparation of his case or has been prevented from taking some measure in support of his position" (Loomis v Civetta Corinno Constr. Corp., 54 NY2d 18, 23 [1981]). Furthermore, " [m]ere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side, the very elements of the laches doctrine'" (id. quoting Edenwald Contracting Co. v New York, 60 NY2d 957, 959 [1983]). "The decision to allow or disallow the amendment is committed to the court's discretion" (Edenwald Contracting Co., 60 NY2d at 959; see also McKenzie v Ostreich, 300 AD2d 371 [2002]).

Here, defendants have failed to demonstrate that they will be prejudiced if the cross motion is granted. In this regard, Reliant argues that it prepared its defense, in part, "on the ground that plaintiff should be held culpably responsible for its own negligent actions" and that by seeking to amend the complaint to add Labor Law § 240 (1), plaintiff's alleged culpable conduct became irrelevant. However, plaintiff's negligence claims still remain viable. Moreover, defendants have not made any arguments regarding the contributory fault of plaintiff in their papers submitted to the court. In any event, as noted, mere exposure to additional liability by virtue of the addition of plaintiff's Labor Law § 240 (1) claim does not constitute prejudice. Reliant also asserts that had it known about plaintiff's Labor Law claims, it might have argued that the LHWCA applied so as to have precluded the application of the state claims. However, Reliant was aware that the Labor Law claims were likely implicated since Elliott argued as much in its motion for summary judgment. In addition, Reliant may have taken the position that the LHWCA was inapplicable to the facts of this case for strategic reasons, not apparent here. Further, Reliant had the opportunity to argue otherwise in its opposition papers, yet failed to do so. In any event, Reliant's arguments are without merit inasmuch as plaintiff's Labor Law claims are not barred under LHWCA, even [*6]assuming that statute is applicable, as discussed below. Reliant's additional claims barring the amendment are also misplaced. Since a motion to amend a pleading may be made "at any time" (CPLR 3025[b]), Reliant's contention that plaintiff was precluded from moving to amend by virtue of CPLR 3214 (b) is without merit. Further, plaintiff's cross motion cannot properly be characterized as having been made on the eve of trial. No trial date has been set, final pleadings in this case were filed as late as May, 2005, and plaintiff moved for the instant relief approximately ten months after the certificate of readiness was filed. While plaintiff's counsel's explanation for failure to make the cross motion sooner is somewhat lacking, the failure to offer an excuse for the delay does not, alone, bar amendment absent a showing of the prejudice resulting from the delay ( Northbay Constr. Co. v Bauco Constr. Corp., 275 AD2d, 310, 312 [2000]). As noted, the requisite showing of prejudice has not been made here.

Petrotech similarly fails to demonstrate that it would sustain significant prejudice if the cross motion were granted. While it argues that it will be denied the opportunity to depose the witnesses regarding the "additional elements" relating to Labor Law §§ 240 and 241, as well as the Industrial Code, it fails to specifically state how it would have conducted discovery differently, nor does it identify the additional questions it would have asked. Moreover, although Petrotech asserts that it will be prejudiced since its summary judgment motion only addressed plaintiff's negligence claims, Petrotech failed to argue in its opposition papers that the Labor Law claims were lacking in merit.

Further, amendments are generally permitted where, as here, the plaintiff is seeking only to add a new theory of liability based upon the same facts upon which previously asserted claims are based (see 39 Coll. Point Corp. v Transpac Capital Corp., 27 AD3d 454 [2006]; Naranjo v Star Corrugated Box Co., 11 AD3d 438 [2004]; Compare Alexander v Isaiah J. Seligman, 131 AD2d 528, 239 [1987]).

Finally, inasmuch as plaintiff's Labor Law § 200 claim is merely a codification of plaintiff's common-law negligence claim (Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877 [2006]), it is undisputed that defendants would not be prejudiced by this amendment.

As to whether the proposed causes of action have merit, as a threshold matter, the court rejects Elliott's claim that plaintiff's Labor Law causes of action are preempted by the LHWCA. "The LHWCA establishes a comprehensive federal workers' compensation program that provides longshoremen and their families with medical, disability, and survivor benefits for work-related injuries and death'" (Emanuel v Sheridan Transp. Corp., 10 AD3d 46, 51 [2004], quoting Howlett v Birkdale Shipping Co., 512 US 92, 96 [ 1994]). " [E]mployee[s]' eligible for LHWCA benefits include any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor-worker including a ship repairman, shipbuilder, and ship-breaker'" (id., citing 33 USC § 902 [3]). In addition to providing workers' compensation benefits to [*7]harbor workers, the LHWCA provides workers covered under the statute with a cause of action for negligence against vessel owners (33 USC § 905 [b]).

Elliott claims that the LHWCA preempts plaintiff's Labor Law claims because the LHWCA evidences the intent of Congress to occupy the field relating to actions by injured workers against vessel owners. Elliott also argues that Labor Law §§ 240 (1) and 241(6) conflict with Section 905(b) of the LHWCA because under the LHWCA, a vessel owner may only be held liable for its own negligence, while Labor Law §§ 240 (1) and 241(6) permit a property owner to be held vicariously liable for the negligence of a third party (see Songui v City of New York, 2 AD3d 706, 708 [2003]).

Even assuming the applicability of the LHWCA, where "the tort was maritime but local" (Cammon v City of New York, 95 NY2d 583 [2000]) and where the claims "do not involve a maritime commercial transaction" (Olsen v James Miller Marine Service, Inc., 16 AD3d 169 [2005]), New York's Labor Law is not preempted by the LHWCA (see also, Songui v City of New York, 2 AD3d 706 [2003]; Aguilar v Henry Marine Service, Inc.,12 AD3d 542, 544 [2004]).

In Cammon, the plaintiff was injured while repairing a pier at the South Bronx Marine Transfer Station, which was owned and operated by the City of New York. At the time of his injury, he was working on a "float stage" in navigable waters that was secured to the land-based transfer station. A passing tugboat caused turbulence that moved the float stage and a crane on the float stage. The turbulence caused timbers attached to the boom of the crane to swing wildly, striking plaintiff in the head and body. Although the LHWCA was applicable, Cammon held that it did not preempt plaintiff's Labor Law claims. Noting that the plaintiff's theory of liability arose under Labor Law §§ 240 (1) and 241 (6), the court stated that:

"[g]iven that protection of workers engaged in maritime activities is an objective of Federal maritime law . . . this case is unlikely to disrupt Federal maritime activity . . . State application of strict liability here will not unduly interfere[] with the federal interest in maintaining the free flow of maritime commerce . . . Local regulations that do not affect vessel operations, but rather govern liability issues with respect to landowners and contractors within the State, have no extraterritorial effect" (id. at 588-589) (internal citations and quotations omitted).

The court also noted that the concept of strict liability was not "necessarily antithetical to Federal maritime law," that states had important interests in justifying the application of a strict liability statute, and that the LHWCA was also a strict liability compensation plan where employers were liable to the injured employee irrespective of fault (id. at 589). The court further held that:

"New York's Labor Law is a local regulation enacted to protect the health and safety of its workers. As the Appellate Division properly concluded, application of the Labor Lawa local regulation governing liability of landowners and contractors acting within the State . . . will not unduly interfere with a fundamental characteristic of maritime law or [*8]unduly hamper maritime commerce. Indeed, many Labor Law provisions such as section 200 (1) and section 241 (6) allow for liability predicated on fault and are wholly consistent with the laudatory maritime goal of compensating injured maritime workers. Furthermore, under these circumstances, where the tort was maritime but local and there are no far-reaching implications for vessels, seafarers or entities engaged in maritime commercial transactions, there is no threat to the uniformity of Federal maritime law sufficient to displace application of an important State health and safety measure, even though it may impose strict liability . . ." (id. at 589-590) (internal citations and quotations omitted).

The court concluded that although plaintiff was injured while on a floating raft on navigable waters, "the raft was anchored to a land-based transfer station, and the work at issue was repair to a land structure" (id. at 590). Based upon the foregoing, "the Labor Law's strong State interest in protecting workers," and because "strict liability is not wholly at odds with Federal maritime principals," the court held that plaintiff's Labor Law claims were not displaced "in the context of this local land-based repair" (id.).

Here, although plaintiff was injured on a barge floating in navigable waters, the barge was among several other barges affixed to a pier which comprised a floating power generating facility, which was moved only for repairs every ten to fifteen years. The barge, therefore, was in effect an extension of land designed for exclusive use as a power plant, and as a result, plaintiff was essentially a land-based worker. Elliott's contention, therefore, that Cammon is distinguisable because the wooden beam the plaintiff in Cammon was cutting was part of a land-based structure (a pier), is therefore rejected. In fact, in Aguilar (12 AD3d at 544), the plaintiff, through his employer, was performing dry-dock services on a tugboat owned by the defendant, and was injured when he tripped on a hose and fell over the side of the vessel at an area from which the bulwark had been removed. Aguilar, however, citing Cammon, held that plaintiff, through his employer, was performing under a contract requiring a land-based alteration of a vessel, an activity covered by Labor Law § 240 (1) (id.). Similarly here, plaintiff was rebuilding a turbine engine on a barge which was essentially moored to a pier, and was injured on the barge itself, as was the plaintiff in Aguilar.

Elliott also argues that Cammon is distinguisable because the defendant therein was not the vessel owner. This argument is also rejected. In Songui (2 AD3d 706), Reynolds Shipyard Corp. was hired by the City of New York to repair City-owned sanitation barges. The barges were moved by tugboat, having no motors or crews, and plaintiff was hired by Reynolds for a temporary period of approximately two weeks to repair a hole on one of the barges, which was moored at Reynolds' pier on Staten Island. The plaintiff, a welder, was injured when he fell from a scaffold located inside the barge, and commenced an action against Reynolds and New York City to recover damages based on the Jones Act and Labor Law §§ 240 (1), 241 (6), and 200. The Second Department held that the LHWCA did not preempt plaintiff's Labor Law § 241 (6) claim because: 1) the doctrine of comparative fault was common to both Labor Law §241 (6) and the LHWCA, 2) the vessel owner would not be subject to liability without allocation of fault, and therefore permitting a claim based [*9]on Labor Law § 241 (6) would not result in material prejudice to a characteristic feature of maritime law, and 3) the application of state law under the circumstances would not interfere with the harmony and uniformity of maritime law, as the vessel involved was local, and had no means of self-propulsion (id. at 709). The instant case involves an owner similar to Songui. Moreover, it is questionable whether the subject barge was capable of self-propulsion and, as noted, the barge at issue is part of a floating power plant moored almost permanently to a pier, and was rarely moved. In addition, plaintiff, a millwright/machinist, performed work like the plaintiff in Songui, rather than the more traditional maritime work of a longshoreman or harbor worker (Compare Emmanuel, 10 AD3d at 47-48; see also Mulhurn v Manhasset Bay Yacht Club (22 AD3d 470 [2005] [the injuries sustained by plaintiff . . . as a result of contact with a load of timber being hoisted by a barge-mounted crane fell within the ambit of Labor Law § 241[6]").

Olsen (16 AD3d 169) also held that this state's Labor Laws were not preempted by the LHWCA. In Olsen, the plaintiff 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 coworker open a sliding door, plaintiff stepped onto plywood covering a hole in the center of the barge, the plywood slipped from under him and he fell into the hole. Plaintiff alleged State Labor Law and federal LHWCA violations. The court held that the case was governed by federal maritime law, however, citing Cammon, found that "[t]he fact that Federal maritime law is involved does not necessarily mean that State law is superseded" (id. at 171, quoting Cammon, 95 NY2d at 587). Holding also that the exercise of federal admiralty jurisdiction does not result in automatic displacement of state law" (id. at 172 [internal citations and quotations omitted]), the court found that the LHWCA did not preempt plaintiff's Labor Law claims because the claims against the lessee of the pier and the general contract did not "involve a maritime commercial transaction, and permitting their assertion would pose no threat to the uniformity of Federal maritime law sufficient to displace the application of an important State health and safety measure'" (id. quoting Cammon, 95 NY2d at 590). Here, plaintiff's claims, like those of the plaintiff in Olsen, "do not involve a maritime commercial transaction, and permitting their assertion against [Orion], the owner of the vessel, and [Petrotech], the general contractor, would pose no threat to the uniformity of Federal maritime law sufficient to displace application of an important State health and safety measure'" (Olsen, 16 AD3d at 171, quoting Cammon, 95 NY2d at 590; see also McAllister v G&S Investors, 358 F Supp 2d 146, 150 [EDNY 2005] [where plaintiff dock builder performing carpentry work fell ten feet from a ladder located on a float stage, court found Labor Law § 240(1) claim was not preempted the LHWCA; no express preemption in LHWCA and LHWCA and Section 240 shared same objective, to protect workers).

Emmanuel (10 AD3d 46), upon which Elliott relies, found that the plaintiff's Labor Law claims were preempted by the LHWCA. However, preemption was found partly because the defendants were not landowners, a factor which was rejected in [*10]Sogui (2 AD3d at 709). Moreover, the incident in Emmanuel involved a vessel which was in the business of transporting oil, was only in dry dock temporarily for repairs, and where the plaintiff was injured while reconnecting a gangway between the barge and dry dock, work typically performed by a ship worker. In contrast, the barge at issue here was essentially a stationary floating power plant attached to a pier, and plaintiff was rebuilding a generator. Thus, Emmanuel is distinguishable. In any event, in view of the above analysis, the court finds that plaintiff's Labor Law claims are not preempted by the LHWCA.[FN8]

As to the merit of the causes of action themselves, the evidence indicates that while plaintiff was in the process of rebuilding a turbine generator on a barge affixed to a pier, he fell into an open manhole up to this thigh, injuring himself. Under these circumstances, and contrary to Elliott's claim, plaintiff was exposed to a type of elevation-related risk contemplated by Labor Law § 240 (1) (see Robetti v Powers Chang, 227 AD2d 542, 543 [1996], appeal dismissed without opinion 88 NY2d 1064 [1996] [plaintiff fell onto corrugated metal decking placed over floor, causing decking to partially collapse, which caused plaintiff's leg to fall through the resulting opening between the metal decking, but not to basement floor below]; O'Connor v Lincoln Metrocenter Partners, L.P., 266 AD2d 60, 61 [1999] [plaintiff fell into a three-foot by four-foot opening in the floor when the plywood that had been placed over it shifted and gave way; plaintiff did not fall to floor below but held himself chest deep in the opening]; Cordero v Kaiser Organization, Inc., 288 AD2d 424, 425 [2001] [plaintiff, while standing on two ceiling beams, lost balance, and fell between the beams, lodging his left leg between them, without falling to ground]; Olsen, 16 AD2d at 171 [above]).Inasmuch as the fall was caused by the alleged inadequacy of warnings around the open hole, a question of fact is raised as to whether plaintiff was provided with the support and protection to which he was entitled under the statute.

Elliott argues in its reply that the hatchway only leads to an intermediate level which would not have permitted plaintiff to have fallen. However, even a partial fall through a hole is covered under Labor Law § 240 (Robertti, 227 AD2d at 543 ["The collapse of a floor which causes a worker to fall even partially through presents an elevation-related risk notwithstanding the purely fortuitous circumstance that the plaintiff in this case was spared greater injuries from a higher fall or contact with the ground below"] [emphasis added]; O'Connor, 266 AD2d at 61).

Plaintiff's Labor Law § 241 (6) claim has merit also. Labor Law § 241(6) provides, in pertinent part, that: [*11]

"All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places."

This statute, which was enacted to provide workers engaged in construction, demolition, and excavation work with reasonable and adequate safety protections, places a nondelegable duty upon owners and general contractors, and their agents, to comply with specific safety rules set forth in the Industrial Code (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502 [1993]). In order to support a cause of action under Labor Law § 241(6), a plaintiff must demonstrate that his or her injuries were proximately caused by a violation of an Industrial Code that is applicable given the circumstances of the accident, and sets forth a concrete standard of conduct rather than a mere reiteration of common-law principals (id. at 502; Ares v State, 80 NY2d 959, 960 [1992]; see also Adams Fab, 212 AD2d 972, 973 [1995]).

Here, at the time plaintiff sustained his injury, he was in the process of rebuilding one of the gas turbine engines located on the subject barge, and thus was engaged in "construction work," as defined by the Industrial Code (12 NYCRR 23-1.4[b][13]; see Kinsler v Lu-Four Assocs., 215 AD2d 631, 632 [1995][plaintiff working on an oil burner or suspended warm air furnace, which was suspended from the ceiling of a building by rods when injured; plaintiff was engaged in "construction work" as defined by 12 NYCRR 23-1.4 (b) (13)]). Thus, contrary to Elliott's contentions, this activity, as compared with routine maintenance and repair, comes within the scope of Labor Law § 241(6)(Compare Garcia v Piazza, 16 AD3d 547, 548 [2005] [routine maintenance activities in a nonconstruction, nonrenovation context not "construction work" within the meaning of the statute]; Antonczyk v Congregation Mosdos D'Rabini of Monsey, Inc., 309 AD2d 776, 777 [2003][same]).In addition, the barge constitutes a "building" or "structure" under the Labor Law (see Aguilar, 12 AD3d 542). Moreover, plaintiff has identified at least one Industrial Code, 12 NYCRR § 23-1.7(b),[FN9] which is sufficiently specific to support a Labor Law § 241(6) claim, and which applies to the circumstances of his accident (see Olsen, 16 AD3d at 171).

In sum, the cross motion to amend the complaint to add violations of Labor Law §§ 240(1), 241(6) is granted as to Orion and Petrotech. That branch of the cross motion to amend the complaint to add a Labor Law § 200 claim against Orion and Petrotech is decided below.

Plaintiff's Negligence Claims[*12]

Orion and Petrotech separately move for summary judgment dismissing plaintiff's common-law negligence claims. In so moving, both of these defendants argue that they did not create or have actual or constructive notice of the open manhole and did not control or supervise plaintiff's work.

In support of this branch of its motion, Orion contends that Mr. James Gregory, Orion's Barge Master at the time of the accident, testified that Orion had a daily time sheet for each contractor that identified "who was on site[,] when they checked in and when they checked out." Further, Mr. Potenzieri, of Orion/Astoria, testified that the Engineering Inspector (the EI), kept the log of work performed on a particular gas turbine generator. He said that Mr. Joseph Califano, an employee of Orion, was the EI in charge of the Narrows Generating Station, who kept a gas turbine operating log book for the work performed on Unit 3-7. The log book indicated that Orion employees did not work on Unit 3-7 until 4:30 P.M. on the day of the accident. Further, Mr. Gregory testified that Petrotech and JSI both needed to open manholes to perform their work.

As to whether Orion had actual or constructive notice of the open manhole, Orion notes that plaintiff testified that he did not see anyone open the manhole and therefore does not know when it was opened. Orion also points out that plaintiff testified that when he walked past the manhole six times before the accident, it had been closed. Orion asserts that inasmuch as plaintiff arrived at work at 6:00 A.M., and the accident occurred at 7:30 A.M., it is speculative to argue that the manhole was open for a sufficient length of time before the accident occurred to have given Orion constructive notice of its open condition.

Finally, Orion notes that Mr. Gregory testified that if a hatch were open, it had to be guarded and taped, and that Orion held safety meetings on a weekly basis to independent contractors, in which it explained that it was necessary to indicate dangerous areas by marking them with tape. Mr. Gregory also testified that Orion was not responsible for standing and protecting the open hatches, and that Orion did not supervise the work of Elliott, Petrotech and JSI.

Labor Law § 200 is merely a codification of the common-law duty placed upon owners and contractors to provide employees with a safe place to work (Yong Ju Kim v Herbert Constr. Co., 275 AD2d 709, 712 [2000]). Liability for causes of action sounding in common-law negligence and for violations of Labor Law § 200 is limited to those who exercise control or supervision over the methods that plaintiff employs in his work, or who have actual or constructive notice of, or are otherwise responsible for an unsafe condition that causes an accident (Aranda v Park East Constr., 4 AD3d 315 [2004]; Akins v Baker, 247 AD2d 562, 563 [1998]).

Here, Orion has shown that it did not supervise or control the work of either Petrotech, JSI or Amertech, or have actual or constructive notice of, or was otherwise responsible for the condition that caused plaintiff's accident. Petrotech and Elliott do not oppose this branch of Orion's motion. Plaintiff, who opposes the motion, has failed to rebut Orion's prima facie showing. In this regard, plaintiff argues that Mr. Scott Jensen, President of JSI, testified that [*13]Orion performed work in Unit 3-7 under the manholes. However, Mr. Jensen testified that he did not recall seeing Orion workers working under the manholes in February, 2001. Plaintiff also argues that he, Petrotech and JSI personnel testified that they were supervised by Orion. Plaintiff, however, only testified that he was given his instructions or job assignments by his foreman, Doug, and by a man named Joe. When asked if he knew Joe's last name, plaintiff testified that "Orion has it," but did not testify that Joe worked for Orion. Further, plaintiff's testimony that he was instructed to repair the subject turbine by Orion, because a piece of it had broken off, fails to demonstrate that Orion supervised plaintiff's work. In any event, since plaintiff's injury was caused by an open manhole, rather than work plaintiff was performing, the relevant inquiry is whether Orion supervised the work performed on the manhole into which plaintiff fell, or whether it created or had actual or constructive notice of the open manhole, not whether it supervised plaintiff.

Plaintiff next cites Mr. Potenzieri's description of the responsibility of Orion's EI, namely that the EI "actually oversees all the work being done by the contractor, quality . . . [and] . . . makes sure that everything they are doing is up to standards." Similarly, plaintiff notes that Mr. Jensen testified that Orion "sometimes supervised" JSI's work, meaning Orion "might have repeated something that Petrotech had," that if Petrotech had been working on a unit, "Orion would come by and verify that we knew a job scope or what to do and what not do to," but that this was not on a regular basis. Plaintiff also points to Mr. Gregory's testimony that Orion made inspections, had "people in the area," had daily discussions with Petrotech, and that Orion workers were on the barge at least once a day. The testimony of these witnesses, however, fails to show that Orion supervised the work which created the open manhole. "General supervisory authority at a work site for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose liability for common-law negligence and under Labor Law § 200" (Dos Santos v STV Engineers, Inc. 8 AD3d 223, 224 [2004], lv denied 4 NY3d 702 [2004]). Similarly, although Mr. Gregory testified that it was Orion's procedure that open hatches had to be guarded, he stated that if contractors did not comply with this safety procedure, Orion would hold a safety meeting on the issue. Supervisory authority with respect to safety issues is insufficient to impose liability for common-law negligence and under Labor Law § 200 (id.).

Finally, contrary to plaintiff's contention, evidence that someone fell through a hatch on the subject barge three weeks before plaintiff's accident and that Orion was told that safety tape had been removed on the barge in the past, does not constitute notice of the open manhole through which plaintiff fell.

Based upon the foregoing, Orion's motion for summary judgment is granted to the extent of dismissing plaintiff's negligence cause of action. In light of this determination, that branch of plaintiff's motion to amend his complaint to assert a Labor Law § 200 claim against Orion is denied.

In support of that branch of its motion to dismiss plaintiff's negligence claims, Petrotech argues that it is not responsible for creating the open manhole. Specifically, [*14]Mr. David Lavie, Division Manager for the Turbomachinery Controls Division at Petrotech at the time of the accident, testified regarding the work performed by Petrotech's subcontractor, Amertech, and Amertech's subcontractor, JSI. He said that Amertech was hired by Petrotech to provide mechanical and electrical installation services on the subject barge, and worked on turbines that ran the entire length of the barge; that Amertech employees installed below-deck piping that ran under the turbines; that Amertech hired JSI to perform electrical work at Gowanas; and that employees from Amertech and JSI installed below-deck electrical systems.

Petrotech also cites to the testimony of Mr. Gregory, of Orion, who stated that JSI was required to open the hatch into which plaintiff fell in order for JSI to perform its wiring work, and to the testimony of Mr. Jensen, of JSI, and Mr. Gregory's assistant, who said that JSI employees were working in the area of plaintiff's accident at the time the accident occurred. Petrotech also points to the testimony of Mr. Potenzieri, of Orion/Astoria, who stated that Greg of JSI told him that Elliott employees "keep breaking the tape and walking by all day long" and that "[e]very time I tape it [the manhole] off to go down the hole somebody breaks the tape." Further, Petrotech argues that the testimony of Amertech's president, Mr.Vito Pietanza - that Amertech performed inspections on the date of the accident as to whether JSI was equipped with barricades, caution signs or safety tape, and that both JSI and Amertech used such safety equipment if their work involved manholes - demonstrates that Amertech and JSI understood that it was their duty to use tape while working on the barge. In addition, Petrotech asserts that Greg of JSI told Mr. Potenzieri that he (Greg) had opened the hatch.Petrotech also argues that Mr. Lavie's testimony - that he had not received a report regarding failure to guard against an open hatch - demonstrates that Petrotech did not have actual notice of open unguarded manhole. In addition, Petrotech contends that it did not have constructive notice of the manhole since there is no evidence that the manhole was unguarded for any length of time, given plaintiff's testimony that he walked by the manhole six times before the accident, and said that the manhole was closed on each of those occasions.

Finally, Petrotech asserts that there is no evidence that it supervised or controlled plaintiff's work because plaintiff testified that he received his daily work assignments from his foreman and from a man named Joe, who was not identified as a Petrotech employee.

"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). "Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (id.). Here, Petrotech has failed to demonstrate, as a matter of law, that it was not responsible for creating the open manhole. In support of this branch of its motion, Petrotech merely attempts to cast blame for the open manhole upon JSI and Amertech, which fails to establish its own lack of culpability. Morever, in doing so, Petrotech impermissibly relies upon inadmissible hearsay [*15]testimony. In this regard, "[a] declaration made by an agent without authority to speak for the principal, even where the agent was authorized to act in the matter to which his declaration relates, does not fall within the speaking agent' exception to the rule against hearsay and is not an admission that can be received in evidence against the principal" (Simpson v New York City Transit Authority, 283 AD2d 419, 410 [2001]). "The burden is on the proponent of such testimony to establish its admissibility" (Alvarez v First Nat'l Supermarkets, Inc., 11 AD3d 572, 574 [2004]). Here, Petrotech has failed to show that the parties who purportedly made admissions on behalf of their principals were authorized to speak on their principals' behalf. Thus, the hearsay testimony cited by Petrotech cannot support Petrotech's motion for summary judgment. Moreover, Petrotech's claim that Mr. Gregory said that Mr. Jensen said that JSI employees were working in the area of plaintiff's accident when the accident occurred - is contradicted by Mr. Gregory's own testimony that he did not recall any JSI employees being on the site on the date of the accident. In addition, Petrotech's claim that JSI opened the hatch is not only based upon hearsay, but it inaccurately reflects Mr. Potenzieri's testimony on that subject. Furthermore, although Petrotech argues that it did not supervise or control plaintiff's work, since the condition which caused plaintiff's injury was unrelated to plaintiff's work, the relevant inquiry is whether Petrotech created the condition or had notice of it (see Bell v Bengomo Realty, Inc., 36 AD3d 479 [2007]). As noted, Petrotech failed to make a prima facie showing that it was not responsible for the open manhole. Finally, testimony that Amertech performed inspections of JSI to ensure that it was equipped with barricades, caution signs or safety tape, and that both JSI and Amertech used such safety equipment if their work involved manholes - fails to demonstrate that Petrotech did not have control over the subject hatch and open manhole. Based upon the foregoing, a question of fact exists as to whether Petrotech created the condition which caused plaintiff's injuries. Therefore, that branch of Petrotech's motion to dismiss plaintiff's negligence claim is denied. As such, that branch of plaintiff's cross motion to amend the complaint to assert a Labor Law § 200 claim against Petrotech is granted.

Orion's Indemnification Claims

Orion moves for summary judgment against Petrotech for common-law and

contractual indemnification, breach of contract for failure to procure liability insurance and "negligence."[FN10] In support of that branch of its motion for contractual indemnification, Orion relies upon paragraph 16.1.2 of its contract with Petrotech. This provision states, in pertinent part, that: [*16]

"[s]upplier [Petrotech] agrees to defend, indemnify and hold harmless OPOS [Orion], its agents . . . against any and all claims, losses and liabilities for bodily injury . . . to third persons as a result of and to the extent arising out of the negligent acts or omissions of Supplier in connection with the performance of this Agreement."

Section 11.2 of the contract provides, in pertinent part, that:

"If Supplier subcontracts portions of this Contract . . . [s]uch subcontracts shall in no way relieve Supplier of liability under the Contract. Supplier agrees to indemnify [Orion] as a result of Subcontractors liability. . ."

Orion argues that it is entitled to contractual indemnification from Petrotech since there is no evidence that it was negligent, or that it directed or controlled plaintiff's work.

Petrotech opposes, arguing that plaintiff's accident was not related to its work; that it maintained a safe working environment; and that it would be negligent only if Amertech, its subcontractor, were negligent. Specifically, Petrotech cites deposition testimony that its employees worked on the barges in a control room, which was located on the main level of the barge and not below deck; that Petrotech employees had no reason to access the below deck areas of the barge; and that both Amertech and JSI performed electrical work below deck on the barge. Further, Petrotech cites to the same inadmissible hearsay testimony it cites in support of its motion for summary judgment. In addition, Petrotech argues that the accident report prepared by Mr. Potenzieri, of Orion/Astoria, indicates that JSI employees were present at the hatch where plaintiff's accident occurred. In sum, Petrotech concludes that since it neither opened nor was aware of the open manhole, the indemnity clause is not triggered.

The indemnification provision requires Petrotech to indemnify Orion for any liability Orion faces as a result of negligence of Petrotech or Petrotech's subcontractors. Here, the court has already found that a question of fact exists as to Petrotech's negligence. Further, Orion has failed to make a prima facie showing that Amertech, Petrotech's only subcontractor, was negligent. Based upon the foregoing, Orion's motion for contractual indemnification from Petrotech is denied.

That branch of Orion's motion for common-law indemnification against Petrotech is also denied. "To establish a claim for common-law indemnification, the one seeking indemnity must prove not only that it was not guilty of negligence beyond the statutory liability but must also prove that the proposed indemnitor was guilty of some negligence that contributed to the causation of the accident'" (Perri v Gilbert Johnson Enters., Ltd., 14 AD3d 681, 683 [2005]; quoting Correia v Professional Data Mgmt., 259 AD2d 60, 65 [1999]). Although Orion has demonstrated the lack of its own negligence, a question of fact exists as to whether Petrotech is negligent.

Orion also moves for summary judgment against Petrotech for breach of contract for failure to procure liability insurance. Orion asserts that Petrotech was obligated to obtain general liability insurance for it under paragraph 28.3.2 of its contract with Petrotech. Petrotech does not address this branch of Orion's motion. Thus, this branch of Orion's [*17]motion is granted. However, to the extent that Orion had its own liability insurance policy in place at the time of the accident, Orion's damages for the breach are limited to the costs of its out of pocket expenses such as premiums, deductibles, and increases in future premiums (Inchaustegui v 666 5th Avenue Ltd. Partnership, 96 NY2d 111, 114-115 [2001]).

That branch of Orion's motion for contractual indemnification based upon Petrotech's failure to provide a safe working environment is denied. The provision in the contract relied upon by Orion for this relief does not provide for indemnification if such violation occurred. In any event, a question of facts exists as to whether Petrotech was negligent.

Petrotech's Claims for Indemnification Against JSI and Amertech

Petrotech also moves for conditional common-law indemnification against JSI and Amertech. JSI and Amertech oppose the motion, arguing, in effect, that they did not create the condition which caused plaintiff's injuries and that Petrotech failed to demonstrate that it was not negligent. "To be entitled to indemnification, [Petrotech must show] that no negligent act or omission on its part contributed to the plaintiff's injuries, and that its liability is therefore purely vicarious'" (Public Adm'r of Kings County v 8 B.W. LLC,AD3d, 2007 NY Slip Op 4275, * 2 [2007], quoting Coque v Wildflower Estates Developers, Inc., 31 AD3d 484, 489 [2006]). Since there is a question of fact as to whether Petrotech created the condition which caused plaintiff's injuries, it is not entitled to summary judgment on its claims for common-law indemnification against JSI or Amertech. For the same reason, that branch of Petrotech's motion to dismiss JSI's fourth-party complaint (seeking, among other things, common-law indemnification against Petrotech), as well as all cross claims and counterclaims asserted against Petrotech, are also denied.

Elliott's Motion for Summary Judgment

Elliott moves for summary judgment dismissing the third and fourth-party complaints, the underlying complaint and all cross claims and counterclaims asserted against it. In the third-party action, Orion asserts causes of action against Elliott for breach of contract for negligence, contractual indemnification, and breach of contract for failure to procure liability insurance. In the fourth-party action, JSI asserts a cause of action against Elliott for common-law indemnification. It is undisputed that Elliott has not produced a witness for deposition. In this regard, Elliott notes that it was "ready and able to proceed with its deposition but it was adjourned."

In support of its motion to dismiss the third-party complaint, Elliott disputes that there was a formal agreement for indemnity in Orion's favor at the time of plaintiff's accident. Further, Elliott maintains that if the court finds that the contract relating to a separate project (The Brunot Island Project), applies to the Gowanas project at issue, that agreement only indemnifies Orion for Elliott's negligence. Elliott also argues that if the court finds the Brunot Island Project contract applies here, there is no evidence that it was negligent, since there is no proof that it opened the hatch or removed caution tape. Specifically, Elliott cites plaintiff's testimony that neither he nor Elliott employees lifted the hatch, and that a Petrotech foreman apologized to plaintiff for opening the hatch. In addition, Elliott cites the testimony [*18]of Mr. Jensen, of JSI, who stated that only Orion, JSI and Petrotech worked beneath the manhole. Elliott also points out that Mr. Potenzieri, of Orion/Astoria, testified that his investigation never revealed who broke caution tape, and that Mr. Jensen testified that he did not recall Elliott employees ripping down caution tape.

Elliott also maintains that even if the court finds the indemnity provision is valid, as vessel owner, Orion cannot obtain contractual indemnification from Elliott since 33 USC 905(b) (of the LHWCA) precludes third-party actions by vessel owners against a longshoremen's employer.

With respect to claims against it for common-law contribution and/or indemnification, Elliott argues that they are barred since plaintiff received Workers' Compensation payments and did not sustain a grave injury. Lastly, Elliott argues that plaintiff's complaint should be dismissed because plaintiff's Labor Law claims are preempted by the LHWCA.

Petrotech, JSI, Reliant (Orion),[FN11] and plaintiff each separately oppose Elliott's motion. JSI argues that Elliott's motion is premature because it has not produced a witness for deposition pursuant to this court's April 20, 2006 order. In this regard, JSI maintains that Elliott has made claims concerning "written agreements" that may have existed "between the parties" and that without the benefit of an Elliott witness to give testimony on the subject, there remains "at issue whether there were contractual agreements which may inure" to JSI's benefit. JSI also notes that Orion has failed to produce Mr. Emmet Facquet for deposition pursuant to this same order. Therefore, JSI argues that it will be prejudiced without these depositions since it will not be able to properly defend itself against all pending summary judgment motions. JSI also contends that there are questions of fact as to whether Elliott was negligent and that Elliott's failure to produce a witness will deprive JSI of testimony necessary to prove this claim.

With respect to its failure to produce a witness, Elliott replies that its deposition was adjourned by other parties, that the note of issue was filed certifying that discovery was complete, and that since no one, including JSI or Reliant, moved to vacate the note of issue in order to depose Elliott's witness, any claims that JSI or Reliant were prejudiced by its failure to produce a witness have been waived.

Further, Elliott states that while JSI argues that a deposition will aid discovery regarding "contractual agreements," between JSI and Elliott, Elliott notes that there are no agreements between Elliott and JSI, nor does JSI provide any evidence of their existence. As to JSI's contention that Elliott's failure to produce a witness will deprive JSI of testimony necessary to demonstrate Elliott's negligence, Elliott argues that plaintiff testified that neither he nor Elliott employees removed caution tape. Finally, Elliott asserts that JSI's argument that it was not negligent is an issue which was not addressed in Elliott's motion. As to [*19]Reliant's claims of prejudice, Elliott argues that Reliant has all necessary liability testimony through the deposition of plaintiff, and was provided with every relevant contract document. As to Reliant's contract claim, Elliott maintains that there was no indemnity agreement in effect at the time of plaintiff's accident. Finally, Elliott reiterates that plaintiff's Labor Law claims are preempted by the LHWCA.[FN12]

Elliott seeks to dismiss Orion's contractual claims against it on the grounds that there was no agreement in place at the time of plaintiff's accident. As noted, Elliott failed to comply with this court's order, dated August 6, 2006, to produce a witness for deposition. A witness for Elliott would have been able to testify as to whether a contract between Orion and Elliott was in place on the date of plaintiff's accident. As such, this branch of Elliot's motion, as well as the branch of the motion for dismissal of Orion's breach of contract claim for failure to procure liability insurance, is premature (Brophy v Metropolitan Life Ins. Co., 278 AD2d 351 [2000]; Finnegan v Ulrich, 288 AD2d 342 [2001]; WPP Group USA v Interpublic Group of Cos., 228 AD2d 296 [1996]; Campbell v City of New York, 220 AD2d 476, 477 [1995]), and is denied with leave to renew upon the completion of a deposition of a witness for Elliott. In view of this determination, those branches of Orion's motion for contractual indemnification and breach of contract against Elliott are also denied.

Even assuming a contract existed, Elliott argues that Reliant is barred, by Section 33 of the LHWCA, from asserting a contractual indemnification claim against it. Pursuant to 33 USC § 905(b), "a vessel' may not seek indemnity or contribution from an employer,' either directly or indirectly, and any agreements or warranties to the contrary shall be void'" (Hartley v City of New York, 228 AD2d 646, 647 [1996], quoting 33 USC § 905[b]); see also Pennisi v Standard Fruit & S.S. Co., 206 AD2d 290, 291 [1994]). [FN13]

"In determining whether the provisions of the LHWCA may be invoked, an employer must establish that the injured party was engaged in maritime employment at the time of the injury and that he was performing these duties on navigable waters" (Colamarino v New York, 166 AD2d 404, 406 [1990]; Pennisi, 206 AD2d at 291; Northeast Marine Terminal Co. v Caputo, 432 US 249, 265 [1977]). Once it is determined that the plaintiff was engaged in maritime employment on navigable waters at the time of the accident, the LHWCA, rather than New York law governs pursuant to the saving to suitors' clause of the Judiciary [*20](Pennisi, 206 AD2d at 291). Here, Orion does not dispute that the barge, while essentially affixed to the pier, was located on navigable waters when plaintiff was injured. However, the court finds that a question of fact exists as to whether "plaintiff was a covered employee under the [LHWCA], that is, whether he was engaged in maritime employment' at the time of his injury" (Gallagher v Rouse Co., 161 AD2d 684, 685 [1990], citing 33 USC § 902 [3]; Herb's Welding v Gray, 470 US 414, 423-424 [1985]; Pfeiffer Co. v Ford, 444 US 69 [1979]; Northeast Mar. Term. Co. v Caputo, 432 US at 266-267). As such, even assuming a contract existed at the time of plaintiff's accident, Elliott's motion to dismiss Orion's contractual indemnity claim would still be denied.

That branch of Elliot's motion to dismiss the fourth-party complaint of JSI, which asserts causes of action for contribution and common-law indemnification, is granted since these causes of action are barred by Workers' Compensation Law § 11. In this regard, "Workers' Compensation Law § 11 provides in pertinent part that [a]n employer shall not be liable for contribution or indemnity to any third person based upon liability for injuries sustained by an employee acting within the scope of his or her employment for such employer unless such third person proves through competent medical evidence that such employee sustained a 'grave injury'" (Khan v Fulton St. Realty Venture, 18 AD3d 616, 617-618 [2005]). "Grave injury" includes "permanent and total loss of use or amputation of a . . . leg" as well as other injuries not relevant here (Spiegler v Gerken Bldg. Corp., 35 AD3d 715 [2006]; Workers' Compensation Law § 11). Since plaintiff's alleged injuries to his leg, as described in his deposition testimony and as further amplified in his bills of particulars, clearly do not fall within any of the enumerated categories, he did not sustain a "grave injury," and therefore JSI is barred from asserting a common-law indemnification claim against Elliott (id.).[FN14] [*21]

Amertech's Motion for Summary Judgment

Amertech moves for summary judgment dismissing the fifth-party complaint and all cross claims asserted against it or, in the alternative, to dismiss the fifth-party complaint because Petrotech failed to provide fully responsive responses to its notice of discovery and inspection, and to dismiss the cross claims Orion asserted against it for contribution, and common-law and contractual indemnification because Orion failed to produce Emmet Facquet for deposition in violation of this court's April 20, 2006 order. The fifth-party complaint commenced by Petrotech against Amertech and JSI asserts causes of action for common-law and contractual indemnification, breach of contract for failure to procure liability insurance, and contribution.

In support of its motion to dismiss the fifth-party complaint, Amertech argues that there was no contract between it and Petrotech pursuant to which it agreed to indemnify Petrotech or provide Petrotech with liability insurance. Amertech also argues that it was not present at the site where plaintiff's accident occurred, nor is there evidence that it created the open manhole, and that therefore all claims against it for common-law indemnification and contribution must be dismissed. Further, Petrotech asserts that JSI's cross claims for common-law indemnification and contribution must be dismissed because Petrotech did not supervise JSI's employees.

In opposition, Petrotech asserts that Amertech's motion must be denied since there is evidence that it may have been responsible for plaintiff's accident. Specifically, Petrotech argues that JSI and Amertech, as the contractors working below deck, opened hatches, understood it was their duty to use caution tape and barricades at open hatches, and were involved in tearing down caution tape.

Plaintiff also opposes the motion, arguing that there are issues of fact as to whether Amertech supervised JSI, whether Amertech created the open manhole, and whether Amertech workers were working on the hatch the morning of the accident, since evidence shows that Amertech's workers were at the Gowanus Facility at 7:00 A.M. on the date of the accident and worked under the manhole, which required opening hatches.

As an initial matter, that branch of Amertech's motion dismissing Petrotech's causes of action for contractual indemnification and breach of contract to procure liability insurance are granted as unopposed. That branch of Amertech's motion for summary judgment dismissing Petrotech's cause of action for common-law indemnification and/or contribution is also granted. First, a question of fact exists as to whether Petrotech created the open manhole, which precludes Petrotech from obtaining common-law indemnification from Amertech (Public Adm'r of Kings County,AD3d, 2007 NY Slip Op 4275, *2 [2007]). Second, Amertech has made a prima facie showing that it did not create the open manhole or have notice that it was open. In this regard, Mr. Pietanza, president of Amertech, reviewed a daily log prepared by Reliant which indicated that Amertech employees arrived [*22]at the Gowanus Facility at 8:30 A.M., after the accident occurred, and that Amertech employees were likely working in Petrotech's staging area, off the barge, but near barge number one or two. He also testified that Amertech did not work alongside workers from Elliott on the day of the accident. This testimony comports with Mr. Pietanza's affidavit, wherein he states that Amertech employees arrived at the Gowanus Facility at 8:30 A.M; that the Reliant log indicates that Amertech workers "refabricated pipes" in its staging area on the pier, approximately 300 years from the barge where plaintiff fell; that on the day of the accident, there were no Amertech employees on barge 3-7; and that the mechanical work performed by Amertech could not be done at the same time Elliott was performing its work (from February 22, 2001 to March 5, 2001), and did not require Amertech workers to work below the main deck on the barges. Mr. Jensen, of JSI, also testified that JSI and Elliott did not work in the same area simultaneously.

Petrotech has failed to rebut this showing. Most of Petrotech's arguments relate to JSI's alleged connection to the open manhole, and is largely hearsay testimony. Also, the testimony of Mr. Lavie, of Petrotech, that Amertech worked below the deck of the barge fails to demonstrate that Amertech did so on the date of plaintiff's accident. Similarly, evidence that Amertech "might" have torn down barricade tape, also fails to demonstrate Amertech's negligence.

Plaintiff has also failed to rebut Amertech's prima facie showing. While plaintiff relies upon Amertech's time sheets to suggest that Amertech employees signed in at the Gowanus Facility at 7:00 A.M., rather than 8:30 A.M., on the day of the accident, Mr. Pietanza testified that Amertech employees left Amertech headquarters at 68 Van Dyke Street in Brooklyn at 7:00 A.M. on the day of the accident, were paid from that moment, and sometimes picked up equipment before arriving at the Gowanus Facility. In any event, there is no evidence that Amertech created the open manhole or had notice it was open.

In view of foregoing, that branch of Amertech's motion to dismiss the fifth-party complaint is granted.

In sum, the court rules as follows: 1) that branch of plaintiff's cross motion to amend his complaint to assert violations of Labor Law §§ 240(1), 241(6) and 200 against Petrotech is granted; 2) that branch of the cross motion as against Orion is granted only with respect to Labor Law §§ 240(1) and 241(6); 3) that branch of Orion's motion for summary judgment dismissing plaintiff's common-law negligence claims is granted; 4) that branch of Orion's motion for common-law indemnification against Petrotech is denied; 5) that branch of Orion's motion against Petrotech for damages for breach of contract for failure to procure liability insurance is granted, but it limited to Orion's out of pocket expenses if Orion had its own liability insurance policy in place at the time of the accident, 6) that branch of Orion's motion against Petrotech for breach of contract for failure to provide a safe working environment is denied; 7) those branches of Orion's motion for contractual indemnification and breach of contract for failure to procure liability insurance are denied; 8) that branch of [*23]Petrotech's motion for summary judgment dismissing plaintiff's negligence claims is denied; 9) that branch of Petrotech's motion for conditional common-law indemnification against JSI and Amertech is denied; 10) that branch of Petrotech's motion to dismiss JSI's fourth-party complaint is denied; 11) that branch of Petrotech's motion to dismiss all cross claims and counterclaims against it is denied; 12) that branch of Elliott's motion to dismiss plaintiff's complaint is denied; 13) those branches of Elliott's motion to dismiss Orion's claims for contractual indemnification and for breach of contract for failure to procure liability insurance are denied as premature with leave to renew upon completion of a deposition of a witness for Elliott; 14) that branch of Elliott's motion to dismiss the fourth-party complaint of JSI is granted; and 15) Amertech's motion for summary judgment dismissing the fifth-party complaint is granted.

This constitutes the decision and order of the court.

E N T E R

J. S.C. Footnotes

Footnote 1:A generator named 3-7 means it is on barge three, and is generator 7.

Footnote 2:The parties use the terms manhole and hatch interchangeably. However, the hatch like the one in front of Unit 3-7 into which plaintiff fell was described as a round opening that has been cut through the deck of the barge to provide access to control boxes located on the platform below the barge's deck, or walkway. The section of the plate that has been cut to make an access opening is hinged in one spot and lifts up, but the normal position is down. The hatches are circular in shape and are approximately two feet in diameter. The distance to the platform below is approximately 3 ½ to 4 feet.

Footnote 3:At the time of deposition, Mr. Potenzieri testified that he worked for "Astoria Generating Company but Reliant Energy."

Footnote 4:According to plaintiff's counsel, although plaintiff originally included Reliant as defendants in the first-party action, it was determined that Reliant acquired the Orion/Astoria defendants after plaintiff's accident, but did not become obligated for any of Orion/Astoria's prior liabilities. Therefore, the parties entered a stipulation of discontinuance [with respect to Reliant] without prejudice. As such, Reliant was removed from the caption in the first-party action. While Orion and Reliant submit papers under each entity's name, they are represented by the same counsel. Further, at times, parties appear to use the names of these parties interchangeably.

Footnote 5:Orion cites the provision in its contract with Elliott which requires Elliott to procure liability insurance on Orion's behalf but it is unclear whether the complaint alleges breach of contract for failure to procure liability insurance. However, Elliott does not raise this argument.

Footnote 6:Plaintiff does not submit an affirmation with his cross motion.

Footnote 7:Plaintiff makes this statement in his reply papers.

Footnote 8:Elliott also relies on Lee v Astoria Generating Co., LP, et al (Index No. 400173/04) (New York County), where the plaintiff therein, also an employee of Elliott, was injured on one of the barges at the Gowanus Facility. The court held that plaintiff's Labor Law claims were preempted by the LHWCA. However, Lee does not address Cammon (95 NY2d 583) directly, nor any of the cases cited above which address the preemption issue.

Footnote 9:This section requires 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.

Footnote 10:Although the court has granted Orion's motion to dismiss plaintiff's common law negligence claims, it must also decide those branches of Orion's motion for alternative relief against Petrotech and Elliott for, among other things, indemnification, since the court has granted plaintiff's motion to amend the complaint to assert Labor Law causes of action.

Footnote 11:Counsel for Reliant, Astoria and Orion characterizes the third-party action as "Reliant's third party action." However, Reliant is not named as a third-party plaintiff. When the parties refer to Reliant, it appears they are referring to Orion.

Footnote 12:The court has already determined that plaintiff's Labor Law claims are not preempted by the LHWCA.

Footnote 13:33 USC § 905[b] provides that: "In the event of injury to a person covered under this Act caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 33 of this Act [33 USC § 933], and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void.

Footnote 14:Plaintiff was awarded workers' compensation benefits from the State of New York Workers' Compensation Board, by decision filed August 22, 2001. However, there is evidence in the record that plaintiff may have made a claim for these benefits with the United Stated Department of Labor, pursuant to the LHWCA. "The [LHWCA] provides that an employer's obligation to compensate an employee under the act shall be exclusive and in place of all other liability of such employer to the employee * * * and anyone otherwise entitled to recover damages from such employer at law * * * on account of such injury' to the employee" (Kenny v Bacolo, 61 NY2d 642, 644 [1983], quoting US Code, tit 33, § 905, subd [a]). Assuming plaintiff received an award of compensation pursuant to a compensation order under the act [the LHWCA] (see US Code, tit 33, § 919), this would also preclude JSI from maintaining a third-party claim for common-law indemnification against Elliott (id.). Also, it should be noted that Elliott also moves to dismiss Orion's cause of action for common-law indemnification. However, it does not appear that Orion asserted a cause of action for common-law indemnification in its third-party complaint against Elliott. Notably, Orion does not move for common-law indemnification against Elliott in its motion for summary judgment. To the extent that Orion asserted a cause of action against Elliott for common-law indemnification in its third-party complaint, this cause of action would also be barred by Workers' Compensation Law § 11.