                          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]).
