Asaro v. Universal Cargo Carriers, Ltd. , 97 A.D.2d 359 ( 1983 )

Motion granted and the order of this court entered on June 21, 1983 (95 AD2d 706) and the memoranda filed therewith recalled and vacated and a new order and memoranda released simultaneously herewith, substituted therefor. Order of this court entered June 21, 1983 which affirmed an order of the Supreme Court, New York County, entered October 12, 1982 granting the motion of the defendants for summary judgment dismissing the complaint, vacated, without costs, and the order of October 12,1982 (Goldman, J.), reversed, on the law, without costs, and the motion for summary judgment dismissing the complaint denied. The plaintiff-appellant is a longshoreman whose employer was both the owner-operator of a vessel and also the stevedore-employer. He was injured while working aboard the vessel while performing stevedoring work on board the vessel, which was docked at a Brooklyn pier. The plaintiff received workers’ compensation benefits and commenced this action against the defendant as the owner of the vessel IOV2 months after the final compensation payment had been made. When the matter was previously before us, a majority of this court determined that the plaintiff had six months to institute the tort action and, therefore, it was time barred. (See Rodriguez v Compass Shipping Co., 451 US 596; see, also, Jones & Laughlin Steel Corp. v Pfeifer, 462 US_, 76 L ed 2d 768; Edelman, Admiralty Law, NYU, Aug. 5, 1983, p 1, col 1.) In the interim, the United States Supreme Court in Pallas Shipping Agency v Duris (461 US_, 76 L ed 2d 120), indicated that there had to be a formal workers’ compensation order to start the limitation time running. It is conceded that there was no formal order entered and that compensation benefits, although paid, were not so ordered. Accordingly, the time limitation did not commence running. On this motion to vacate our order of June 21, 1983, the defendants contend that the question of the need for a formal order was not properly raised on appeal. However, it was implied and, accordingly, the point is properly before us. The order of affirmance is vacated and the order at Special Term of October 12, 1982 is reversed and summary judgment dismissing the complaint is denied. Concur — Kupferman, J. P., Asch, Silverman and Milonas, JJ.