Opinion
March 25, 1991
Appeal from the Supreme Court, Kings County (Huttner, J.).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, the motion for summary judgment is granted, and the third-party complaint is dismissed insofar as it is asserted against the third-party defendant International Terminal Operations, Inc.
On September 19, 1984, the plaintiff's decedent was killed when he was struck and crushed under a hi-lo toploader used to remove and replace shipping containers onto the chassis of trucks and transport the containers to and from shipside where they were loaded by a crane. At that time the plaintiff's decedent was employed by third-party defendant International Terminal Operations, Inc. (hereinafter ITO), which subsequently compensated the plaintiff pursuant to the Longshoremen's and Harbor Workers' Compensation Act (hereinafter the Act) ( 33 U.S.C. § 901 et seq.). The plaintiff then brought an action against Taylor Machine Works, Inc. (hereinafter Taylor), the manufacturer of the toploader, who in turn joined ITO, and the toploader operator, Willie Payton, seeking contribution and indemnification.
ITO unsuccessfully moved for summary judgment and, upon reargument, the court adhered to its initial determination.
Since there exist no questions of fact regarding whether the plaintiff's decedent was engaged in maritime employment on navigable waters at the time of the accident (see, Herb's Welding v Gray, 470 U.S. 414, 423-424; Pfeiffer Co. v Ford, 444 U.S. 69; Northeast Mar. Term. v Caputo, 432 U.S. 249, 266-267), Taylor may not maintain an action for contribution against ITO, as ITO is shielded by the Act's provision excluding a longshoreman's compensation-paying employer from liability other than under the Act (see, 33 U.S.C. § 905 [a]; Fragedis v Farrell Lines, 64 N.Y.2d 987; Kenny v Bacolo, 61 N.Y.2d 642; Colamarino v City of New York, 166 A.D.2d 404).
Additionally, since there is no evidence of any express or implied contract of indemnity between ITO and Taylor, an action for indemnification will not lie (see, Magno v Waterman S.S. Lines, 89 A.D.2d 958, 958-959; see also, Stuto v Coastal Dry Dock Repair Corp., 153 A.D.2d 937). Brown, J.P., Sullivan, Eiber and O'Brien, JJ., concur.