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BUCCELLATO v. CITY OF NEW YORK

December 23, 1992

FRANK BUCCELLATO, Plaintiff,
v.
THE CITY OF NEW YORK, Defendant.



The opinion of the court was delivered by: I. LEO GLASSER

MEMORANDUM AND ORDER

 GLASSER, United States District Judge.

 Plaintiff Frank Buccellato was injured while working at a sanitation unloading facility in Staten Island. He commenced this personal injury action under the Jones Act. Defendant City of New York moves for summary judgment on the ground that plaintiff is not a seaman under the Jones Act. For the following reasons, defendant's motion is denied.

 FACTS

 This case involves a fleet of barges owned by defendant City of New York. The barges are used to "transport city refuse on the navigable waters in and around the Port of New York, from certain Marine Transfer Stations (MTS) to the Marine Unloading Facility ["MUL"] located in Fresh Kills, Staten Island, New York." Pl's Memo. of Law at 2. Commercial tugs move the barges from the MTS to the MUL. The function of the MUL is to unload garbage from the barges to be deposited in a sanitation landfill and to allow unloaded barges or "light barges" to make the return trip to be reloaded at the MTS.

 At the MUL a land-based crane lifts the garbage off the barges. Loaded barges or "heavy barges" are attached by boatlines to a electrical winch system and shifted along the dock for 800 feet to be positioned beneath the crane. Def's 3(g) Statement at PP 16, 19, 20. Once a barge is unloaded, a "digger gang" or "digger crew," consisting of eight members, "swings" out the unloaded barge from beneath the crane and "swings" in a loaded barge for unloading.

 Plaintiff is employed by the New York City Department of Sanitation ("Sanitation Department") as a member of a digger gang. Each member of the digger gang performs different duties throughout the day under a rotation system. The general duties of the digger gang are to board loaded and unloaded barges to attach and detach their boatlines; to remove the protective netting used to prevent refuse from falling into the sea; to fight fires on the barges that are spontaneously produced by methane gas buildup; to test the seaworthiness of a light barge by sounding out its hull; to pump water out of the compartments of a light barge; and to clean up any refuse remaining in an unloaded barge. Pl's 3(g) Statement at P 11(f); Def's 3(g) Statement at P 26. Specifically, when a light barge is swung out and when a heavy barge is swung in, two members of the digger gang ride the light barge to handle its boatlines; two members ride the heavy barge to handle its boatlines; two members handle the boatlines from the dock; one member operates the winch system; and a "catwalk" man "checks the boat lines, secures any loose lines and records the boat numbers of the "empty" boats before his workshift started." Pl's 3(g) Statement at P 11(g); Def's 3(g) Statement at P 27. Since the Sanitation Department mandates that time records be kept of each shift, a supervisor records the time taken to unload a barge, to "swing" it out, to swing in a loaded barge for unloading, and the reason for any delay.

 On February 5, 1990, plaintiff was injured when he slipped on oil while serving as the "catwalk" man of the digger gang. On October 9, 1990, he commenced this personal injury action, invoking federal jurisdiction under the Jones Act and general admiralty law. *fn1" Defendant City of New York moves for summary judgment on the ground that plaintiff is not a seaman under the Jones Act. *fn2" For the foregoing reasons, defendant's summary judgment motion is denied.

 DISCUSSION

 Summary judgment "shall be rendered forthwith if . . . there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). In opposing a properly supported summary judgment motion, "an adverse party may not rest upon the mere allegations or denials of [its] pleading, but [its] response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e). In deciding a summary judgment motion, the court need not resolve disputed issues of fact, but need only determine whether there is any genuine issue to be tried. Eastman Mach. Co., Inc. v. United States, 841 F.2d 469, 473 (2d Cir. 1988). A genuine factual issue exists if there is sufficient evidence favoring the nonmovant such that a jury could return a verdict in its favor, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986), and "all factual inferences are to be drawn in favor of the [nonmovant]." Oxley v. City of New York, 923 F.2d 22, 24 (2d Cir. 1991).

 In this case, the parties do not dispute any material facts. Plaintiff only questions the accuracy of certain daily time records of digger gang shifts from January 5, 1990 through February 5, 1990 on the ground that he has not had the opportunity to examine the superintendent who prepared those time records. Pl's 3(g) Counterstatement at P 9. However, as the information contained in those time records is immaterial to the disposition of this motion, plaintiff and defendant do not dispute any of the material facts.

 Plaintiff asserts a claim under the Jones Act, 46 U.S.C. App. § 688, which provides relief to "seamen" who sustain injuries during their employment, but "under the Jones Act or general maritime law, seamen do not include land-based workers." McDermott Int'l, Inc. v. Wilander, 498 U.S. 337, 112 L. Ed. 2d 866, 111 S. Ct. 807, 814 (1991). The Longshore and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. § 901, et seq., provides the exclusive remedy for land-based workers such as longshoremen and stevedores who unload or shift a ship's cargo. 33 U.S.C. § 905 (a). The remedies afforded by the Jones Act and the LHWCA are mutually exclusive. Southwest Marine, Inc. v. Gizoni, 116 L. Ed. 2d 405, U.S. , 112 S. Ct. 486, 492 (1991) (quoting Wilander, 498 U.S. 337, 111 S. Ct. at 813).

 The City argues that it is entitled to summary judgment as a matter of law because plaintiff is a land-based worker and not a seaman within the Jones Act. Plaintiff counters that whether the nature of his duties makes him a "seaman" for purposes of the Jones Act is a jury issue. Because this Court concludes that reasonable jurors, after applying the statutory standard to the evidence in the record, could reach ...


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