Opinion
November 2, 1942.
Action to recover damages for personal injuries sustained by the plaintiff while he was working as a stevedore upon defendants' ship. The fifth affirmative defense alleges that plaintiff's employer has complied with the provisions of the Longshoremen's and Harbor Workers' Compensation Act (U.S. Code, tit. 33, §§ 901-950; 44 Stat. 1424, ch. 509), and has provided compensation thereunder to plaintiff. Order denying in part and granting in part defendants' motion for summary judgment and to strike out the reply modified on the law so as to provide that defendants' motion be granted in its entirety. As thus modified, the order, in so far as appealed from, is affirmed, with ten dollars costs and disbursements to appellants. The fifth affirmative defense is sufficient in law. ( Jakuboski v. Matson Navigation Co., 264 App. Div. 735; Hunt v. Bank Line, 35 Fed. Rep. [2d] 136.) The affidavit submitted on behalf of plaintiff in opposition to the motion fails to show the existence of a triable issue of fact. Carswell, Johnston, Adel and Close, JJ., concur; Lazansky, P.J., dissents and votes to affirm.