Upon the foregoing papers, the motion, inter alia, for summary judgment by defendants MVN Associates, Inc. and East Coast Diving, Inc. is granted, and the complaint as against them is severed and dismissed.

Plaintiff commenced this action to recover damages for personal injuries he allegedly sustained on January 16, 2004 when, in the course of his employment as an operating engineer, he fell from an elevation while working on a crane that was situated on a barge located near Pier 6, on Hannah Street in Staten Island, New York. At the time, plaintiff's employer, defendant MVN Associates, Inc. ("MVN"), was performing certain work at a recreation center owned by defendant City of New York.

Defendants MVN and East Coast Diving, Inc. ("East Coast") move for summary judgment dismissing the complaint as against them on the ground that the Longshore and Harbor Workers' Compensation Act ("LHWCA") precludes an employee from maintaining an action against an employer which fulfills its legal obligation by paying benefits to the injured employee. Movants maintain that it is undisputed that plaintiff (1) was an employee within the meaning of the LHWCA (33 USC §902[3]) and (2) received federal workers' compensation benefits under that statute (33 USC §901 et seq.). Therefore, it is claimed that plaintiff's causes of [*2]action against MVN and East Coast must be dismissed.

In support, movants have submitted the affidavit of Daniel D'Aquila, an officer of MVN and a former project manager at the site of plaintiff's accident. According to Mr. D'Aquila, East Coast is a "defunct" corporation that formerly owned MVN, but ceased operations before January 2004. As is pertinent, he attests that neither MVN nor East Coast was the owner of any vessel, dock, pier or other maritime object at plaintiff's job site, and that plaintiff received workers' compensation benefits under the LHWCA pursuant to MVN's insurance policy administered through the State Insurance Fund. In response to plaintiff's opposition papers, movants have also submitted the declaration sheet for the workers' compensation policy and plaintiff's W-4 and W-2 statements. The former establishes that both East Coast and MVN were insured at the time of plaintiff's injury, while the latter identifies MVN as his employer.

In view of the foregoing, it is the opinion of this Court that the moving defendants have made a prima facie showing that the LHWCA is plaintiff's exclusive remedy against them (see Olsen v James Miller Mar. Servs.,16 AD3d 169, 171-172 [1st Dept 2005]; Hartley v City of New York, 228 AD2d 646 [2nd Dept 1996]; see generally Alvarez v Prospect Hosp., 68 NY2d 320). In opposition, the affirmation of plaintiff's attorney has failed to demonstrate that a triable issue of fact exists, or that additional discovery is required to oppose this motion (cf. 3212[f]).

In further opposition to the motion, defendant the City of New York ("City") correctly contends that claims for contractual indemnification against an employer are not barred under the LHWCA (Pennisi v Std. Fruit & S.S. Co., 206 AD2d 290 [1st Dept 1994). Accordingly, the City maintains that summary judgment on its cross claims is premature since (1) no discovery has taken place to determine the contractual obligations of the respective parties, and (2) it has yet to secure a copy of the contract allowing co-defendants' use of the subject pier.

In this regard, it is noted that the dismissal of the City's cross claims, e.g., for indemnification, have neither been requested or addressed in the moving papers, nor has it been considered by the Court.

Accordingly, it is

ORDERED, that so much of the motion of defendants MVN Associates, Inc. and East Coast Diving, Inc. as is for summary judgment dismissing the complaint as against them is granted, and the complaint is hereby severed and dismissed as against these defendants; and it is further

ORDERED, that the balance of the motion is denied as academic; and it is further

ORDERED, that the Clerk enter judgment accordingly.

E N T E R,

Dated: June 26, 2006 /s/ Christopher J. Mega

J.S.C. [*3]