Hofmann & Schweitzer, New York, NY (Paul T. Hofmann of
counsel), for appellant.
Kaufman Dolowich & Voluck, LLP, Woodbury, NY (Michael V.
DeSantis, Jennifer E. Sherven, and Jonathan Isaacson of
counsel), for respondent.
PRISCILLA HALL, J.P. JEFFREY A. COHEN ROBERT J. MILLER
FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
action to recover damages for personal injuries, the
plaintiff appeals from an order of the Supreme Court, Kings
County (Rothenberg, J.), dated July 11, 2014, which granted
the defendant's motion pursuant to CPLR 3211(a)(7) to
dismiss the complaint and denied his cross motion pursuant to
CPLR 3025(b) for leave to amend the complaint.
that the order is affirmed, with costs.
14, 2012, the plaintiff allegedly was injured at the Brooklyn
Navy Yard while performing overhaul work in a shipyard work
shop on a gate valve that had been removed from a
steel-hulled ship. In an order dated June 17, 2013, the
Supreme Court denied the plaintiff's petition for leave
to serve a late notice of claim on the City of New York. The
plaintiff appealed from that order, but before this Court
determined that appeal, the plaintiff commenced this action
against the City, asserting violations of Labor Law
§§ 200, 240(1), and 241(6). The City moved to
dismiss the complaint based upon the plaintiff's failure
to satisfy the condition precedent of serving a timely notice
of claim, as required by General Municipal Law §§
50-e and 50-i. The plaintiff opposed the motion, and
cross-moved for leave to amend the complaint. He argued that
the New York State General Municipal Law notice of claim
requirements were preempted by 33 USC § 933(a), a
provision of the Longshoremen's and Harbor Workers'
Compensation Act (33 USC § 901 et seq;
hereinafter the LHWCA), and by 46 USC § 30106, which
provide for the right of a recipient of benefits pursuant to
the LHWCA to interpose third-party claims within six months
of an award of benefits, or within three years of an injury
arising out of a maritime tort, respectively. The proposed
amended complaint asserted that the plaintiff was a recipient
of benefits pursuant to the LHWCA, and added a cause of
action alleging a "maritime tort" in addition to
the causes of action alleging violations of Labor Law
§§ 200, 240(1), and 241(6).
order dated July 11, 2014, the Supreme Court granted the
City's motion and denied the plaintiff's cross
motion. The plaintiff appeals. In a decision and order dated
August 12, 2015, this Court affirmed the order dated June 17,
2013, denying the plaintiff's petition for leave to serve
a late notice of claim (see Matter of Fernandez v City of
New York, 131 A.D.3d 532).
LHWCA provides nonseaman maritime workers with the right to
bring no-fault workers' compensation claims against their
employer, pursuant to 33 USC § 904(b), and negligence
claims against the vessel, pursuant to 33 USC § 905(b).
As to those two categories of defendants, 33 USC §
905(a) and (b) expressly preempt all other claims, but 33 USC
§ 933(a) expressly preserves all claims against third
parties (see Norfolk Shipbuilding & Drydock Corp. v
Garris, 532 U.S. 811, 818-819). "Importantly,
§ 933 recognizes that a covered employee may have tort
remedies against third parties under federal or state law.
Section 933 preserves and codifies a maritime worker's
common law right to pursue a negligence claim against a third
party that is not the employer or a coworker; it does not
create a cause of action nor establish a third party's
liability for negligence" (McLaurin v Noble Drilling
[US] Inc., 529 F.3d 285, 291-292 [5th Cir]).
the plaintiff is pursuing New York State Labor Law causes of
action against the City, a nonmaritime entity, as the owner
of the property on which he was injured, as he is permitted
to do pursuant to 33 USC § 933(a). However, 33 USC
§ 933(a) does not alter the requirement of General
Municipal Law §§ 50-e and 50-i that a plaintiff
must serve a timely notice of claim as a condition precedent
to bringing a tort action against a public corporation
(see Fontenot v Dual Drilling Co., 179 F.3d 969');">179 F.3d 969 [5th
Cir]). "The third party action [permitted by 33 USC
§ 933(a)], when founded on state law, is a creature of
state law and is to be governed entirely by it"
(Garvin v Alumax of South Carolina, Inc., 787 F.2d
910, 917 [4th Cir]). Moreover, the fact that the plaintiff is
a recipient of benefits pursuant to LHWCA does not transform
his New York State Labor Law causes of action into maritime
torts subject to federal law.
extent that the plaintiff's proposed amended complaint
purports to assert a federal maritime tort separate and apart
from the New York State Labor Law causes of action, we find
that it is patently devoid of merit since the accident
allegedly occurred at a location not subject to maritime
jurisdiction (see Victory Carriers, Inc. v Law, 404
U.S. 202; Scott v Trump Indiana, Inc., 337 F.3d 939');">337 F.3d 939
plaintiff's contention that his petition for leave to
serve a late notice of claim should have been granted is not
properly before us on this appeal.
since the plaintiff failed to satisfy the condition precedent
of serving a timely notice of claim, and the proposed
amendment to the complaint is patently devoid of merit, the
Supreme Court properly granted the City's motion to
dismiss the complaint and denied the plaintiff's cross
motion for leave to amend the complaint ...