State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: October 30, 2014 517694 

________________________________

JENNIFER MARSTON, Individually

and as Administrator of

the Estate of JEFFREY

HARBISON, Deceased,

Respondent,

v

GENERAL ELECTRIC COMPANY,

Defendant, MEMORANDUM AND ORDER

 and

PARSONS ENGINEERING OF NEW

YORK, INC., et al.,

Respondents,

 and

URS CORPORATION,

Appellant.

(And Two Third-Party Actions.)

________________________________

Calendar Date: September 2, 2014

Before: Lahtinen, J.P., Stein, McCarthy, Rose and Devine, JJ.

__________

Thompson Hine, LLP, New York City (Richard De Palma of

counsel), for appellant.

Bartlett, Pontiff, Stewart & Rhodes, PC, Glens Falls (John

D. Wright of counsel), for Jennifer Marston, respondent.

Braverman Greenspun, PC, New York City (Steven R. Goldstein

of counsel), for Parsons Engineering of New York, Inc.,

respondent.
-2- 517694 

Hanlon & Veloce, Latham (Christine D'Addio Hanlon of

counsel), for Saratoga Safety, Inc., respondent.

__________

Rose, J.

Appeal from an order of the Supreme Court (Hall Jr., J.),

entered July 9, 2013 in Washington County, which, among other

things, denied a motion by defendant URS Corporation to dismiss

the complaint against it.

Jeffrey Harbison (hereinafter decedent), an employee of

defendant URS Corporation, was assigned to perform archeological

surveys in connection with defendant General Electric Company's

dredging project in the Hudson River. When a boat he was

operating on the river as part of his employment duties lost

power and was swept over the Thompson Island Dam, decedent

drowned. Plaintiff, his wife, commenced this action asserting,

as relevant here, a claim against URS under the Jones Act (46 USC

§ 30104 et seq.). Defendants Parsons Engineering of New York,

Inc. and Saratoga Safety, Inc., contractors on the dredging

project, asserted cross claims against URS for common-law and

contractual indemnity. Prior to answering, URS moved, pursuant

to CPLR 3211 (a) (1) and (7), to dismiss plaintiff's Jones Act

cause of action and the cross claims for indemnification asserted

by Parsons and Saratoga Safety. Supreme Court denied the motion

to dismiss and granted plaintiff's motion to amend the complaint. 

URS now appeals.1 

URS argues that plaintiff failed to sufficiently state a

Jones Act violation by failing to allege that decedent was a

"seaman" under the statute and that, even if a claim was properly

stated, the affidavits submitted in support of the motion to

1 Contrary to plaintiff's claim, the filing of the amended

complaint does not render the appeal moot inasmuch as the Jones

Act cause of action has not been altered (see EDP Hosp. Computer

Sys. v Bronx-Lebanon Hosp. Ctr., 212 AD2d 570, 571 [1995]). 
-3- 517694 

dismiss conclusively establish that decedent does not qualify for

seaman status under the Jones Act. We are not persuaded. Under

the Jones Act, any seaman or his or her representative may bring

a civil action to recover for injury or death sustained in the

course of employment (see 46 USC § 30104). While there is no

statutory definition of a seaman, it has been held that, in order

to qualify as one, an employee's duties must contribute to the

function of the vessel or accomplishment of its mission and the

employee must have "a connection to a vessel in navigation . . .

that is substantial in terms of both its duration and its nature"

(Chandris, Inc. v Latsis, 515 US 347, 368 [1995]; accord Smith v

Lone Star Indus., 1 AD3d 860, 862 [2003]). Here, the failure to

specifically use the word "seaman" in the complaint is not fatal,

inasmuch as allegations that decedent drowned while operating

URS's vessel on the Hudson River in the course of his employment,

and the reasonable inferences to be drawn therefrom, suffice to

provide notice of plaintiff's Jones Act claim (see e.g. Pludeman

v Northern Leasing Sys., Inc., 10 NY3d 486, 492-493 [2008]; Banc

of Am. Sec. LLC v Solow Bldg. Co. II, L.L.C., 47 AD3d 239, 242-

243 [2007]). 

URS also submitted factual affidavits to support dismissal

of the complaint pursuant to CPLR 3211 (a) (7). To warrant the

relief sought, however, the affidavits must "establish

conclusively that plaintiff has no cause of action" (Rovello v

Orofino Realty Co., 40 NY2d 633, 636 [1976]). Here, the

affidavits describe decedent's duties for URS as a land-based

archeologist and indicate that, other than the date of his death,

the only other times he was on a boat in connection with the

Hudson River project included three days in 2006 and six days in

2009. The affidavits note that decedent was also assigned to

other URS projects during this time frame and do not sufficiently

describe whether his activities while assigned to the Hudson

River project were limited to the times that he spent on the

water in 2006 and 2009. The determination of whether decedent

was a seaman is fact-specific and, depending on the nature and

duration of his duties on this assignment, it is possible that

his status had converted to that of a seaman at the time of his

fatal accident (see Chandris, Inc. v Latsis, 515 US at 372;

compare Caputo v Clean Harbors, 218 AD2d 924, 925-926 [1995]). 

Moreover, plaintiff cannot be faulted for not coming forward with
-4- 517694 

any evidence in opposition to the motion to dismiss inasmuch as

it was never converted to a motion for summary judgment (see

Miglino v Bally Total Fitness of Greater N.Y., Inc., 20 NY3d 342,

351 [2013]; Nonnon v City of New York, 9 NY3d 825, 827 [2007];

Rovello v Orofino Realty Co., 40 NY2d at 636). Accordingly,

Supreme Court properly declined to make factual determinations in

the context of this CPLR 3211 motion.2

Inasmuch as URS's motion to dismiss the cross claims for

common-law indemnity hinged on whether the Jones Act is

applicable, the motion to dismiss those cross claims was also

properly denied. Finally, a determination of whether Saratoga

Safety and Parsons qualify as "representatives" of GE so as to

require URS to indemnify them pursuant to its contract with GE

requires factual proof as to the parties' intent and,

accordingly, URS's pre-answer motion to dismiss was properly

denied as well (see e.g. Vaughns v Kirkland, 85 AD3d 770, 770

[2011]; Four Seasons Hotels v Vinnik, 127 AD2d 310, 318 [1987];

Kushner v King, 126 AD2d 466, 467-468 [1987]). 

Lahtinen, J.P., Stein, McCarthy and Devine, JJ., concur.

ORDERED that the order is affirmed, with one bill of costs. 

ENTER:

Robert D. Mayberger

Clerk of the Court

2 While URS also sought dismissal of the Jones Act claim

pursuant to CPLR 3211 (a) (1), the affidavits it submitted do not

constitute "documentary evidence" pursuant to that statute (see

Matter of North Dock Tin Boat Assn., Inc. v New York State Off.

of Gen. Servs., 96 AD3d 1186, 1189 n [2012]; Crepin v Fogarty, 59

AD3d 837, 838 [2009]).