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LEE v. ASTORIA GENERATING CO., L.P.

55 A.D.3d 124 (2008)

863 N.Y.S.2d 164

JAMES D. LEE, Appellant, v. ASTORIA GENERATING COMPANY, L.P., et al., Respondents. ELLIOTT TURBOMACHINERY Co., Inc., et al., Third-Party Defendants-Respondents.

Appellate Division of the Supreme Court of the State of New York, First Department.

August 12, 2008.

Attorney(s) appearing for the Case

Hofmann & Associates, New York City (Paul T. Hofmann and Timothy F. Schweitzer of counsel), for appellant.

Mauro Goldberg & Lilling LLP, Great Neck (Deborah F. Peters and Caryn L. Lilling of counsel), and Robin, Harris, King & Fodera, New York City, for Astoria Generating Company, L.P. and others, respondents.

Lester Schwab Katz & Dwyer, LLP, New York City (John Sandercock and Steven B. Prystowsky of counsel), for Elliott Turbomachinery Co., Inc. and another, respondents.

MAZZARELLI, J.P., SAXE and CATTERSON, JJ., concur with ACOSTA, J.; FRIEDMAN, J., dissents in part in a separate opinion.

OPINION OF THE COURT

ACOSTA, J.

The issue in this case is whether the barge containing an electricity generating turbine upon which plaintiff was working when he was injured is a "vessel" under the Longshore and Harbor Workers' Compensation Act (LHWCA) (33 USC § 901 et seq.), thereby precluding plaintiff from pursuing an action ultimately against defendants (collectively Astoria), the owners of...

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