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United States District Court, S.D. New York

May 4, 2004.

Namik Tabaku and Vjolka Tabaku, Plaintiffs -v- IPC Commercial Properties, LLC, Defendant, IPC Commercial Properties, LLC, Third-Party Plaintiff, -v- Jerrick Waterproofing Co., Inc., Third-Party Defendant

The opinion of the court was delivered by: LAURA TAYLOR SWAIN, District Judge


Plaintiffs Namik Tabaku and Vjolka Tabaku bring this action to recover damages from Defendant/Third-Party Plaintiff IPC Commercial Properties (IPC) for personal injuries allegedly suffered in an incident at 1 Edgewater Plaza, Staten Island, New York (the "location"). There appears to be no dispute that Plaintiff Namik Tabaku fell from a sidewalk protection bridge (the "bridge") while attaching protective netting. IPC had contracted with Third-Party Defendant Jerrick Waterproofing Company ("Jerrick") for installation of the bridge at the location. IPC brought a third-party action against Jerrick, alleging that if the conditions of the bridge were dangerous, the conditions were a result of Jerrick's negligence in performing its work at the location.

  Before the Court is Jerrick's motion for summary judgment. The Court has considered thoroughly all the submissions related to this motion. For the reasons set forth below, Jerrick's motion for summary judgment is denied.


  The following factual recitation is based on the parties' statements of material facts pursuant to Local Rule 56.1 and affidavits submitted in connection with Jerrick's motion for summary judgment. The facts outlined below are undisputed except as otherwise noted.

  Plaintiff Namik Tabaku was employed at the location to perform plastering work on the exterior restoration of the building. On June 28, 2002, Plaintiff was attaching a safety net to the sidewalk bridge. The safety net was being installed to prevent debris from falling to the ground below and possibly injuring pedestrians. To attach the safety net, Tabaku nailed wooden 2 x 4's to the flooring planks of the bridge. After installing the 2 x 4's, Tabaku began to attach the safety net to the top of each 2 x 4 piece of wood. Tabaku was nailing the safety net to the top of one of the 2 x 4's when the bottom of the 2 x 4 came loose from the floor of the bridge. The 2 x 4 fell over the side of the bridge barrier wall and Tabaku fell with it, sustaining injuries. Plaintiff was not wearing a safety harness while working on the bridge.

  Plaintiff alleges that the 2 x 4 became loosened from the flooring plank because the flooring plank was wet. Plaintiff further alleges that a dripping air conditioner caused the flooring plank to be wet, which in turn caused the nail to be loosened and the 2 x 4 to fall over the barrier wall. Plaintiff additionally claims that the barrier wall collapsed under his weight and fell to the ground along with him and the 2 x 4. Third-Party Plaintiff IPC contends, based principally on Plaintiff's deposition testimony, that a flooring plank on the bridge was loose at the time of the accident and that the wooden barrier around the bridge was too low. Citing the testimony of an eyewitness to the accident, Third-Party Defendant Jerrick argues that the only structural element that fell was the 2 x 4 on which Plaintiff was leaning and that there is no credible evidence of any defect in the bridge. The parties also dispute the propriety of the construction-related activity on the bridge. Jerrick asserts that it was not intended to be used as a "scaffold." Jerrick further asserts that it had no connection with the work site, having installed the bridge some 14 months before the accident and inspected it once in the interval before the accident. IPC, citing testimony by a Jerrick witness that the bridge was to serve as a "staging area" for construction material, argues that the workers' activity on the bridge at the time of the accident was of a type that Jerrick should have anticipated. IPC also asserts that Jerrick inspected the bridge more frequently. DISCUSSION

  Third-Party Defendant Jerrick seeks summary judgment, contending that the sidewalk bridge was not defective in any manner and that IPC and its employees used the bridge improperly.

  Summary judgment shall be granted in favor of a moving party where the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the burden of establishing the absence of any genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 91 L.Ed.2d 202, 106 S.Ct. 2505 (1986). When considering a motion for summary judgment, the Court does not engage in fact-finding or weighing of credibility, but determines whether any material questions of fact are in dispute after resolving all ambiguities and drawing all justifiable inferences in favor of the nonmoving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 147 L.Ed.2d 105, 120 S.Ct. 2097 (2000); Anderson, 477 U.S. at 250; Carlton v. Mystic Transportation Inc., 202 F.3d 129, 133 (2d Cir. 2000). A genuine issue of material fact exists if "a reasonable jury could return a verdict for the nonmoving party." Anderson. 477 U.S. at 248; Converse v. General Motors Corp., 893 F.2d 513, 514 (2d Cir. 1990).

  IPC, citing Plaintiff's testimony, contends that Jerrick failed to maintain the sidewalk bridge in compliance with the applicable provisions of the NYC Administrative Code. The relevant provision reads as follows: (b) Sidewalk sheds.


(1) Every sidewalk shed deck shall be designed and constructed to carry a live load of at least three hundred psf. However, a live load of one hundred fifty psf may be permitted for buildings less than one hundred feet in height provided there is no storage thereon. The members of the sidewalk shed shall be adequately braced and connected to prevent displacement or distortion of the framework. Where posts supporting the shed deck are placed beyond the curb, such posts shall be protected against displacement by vehicles.
(2) The deck of the sidewalk shed shall consist of planking closely laid, and made tight.
(6) The outer side and ends of the deck of the shed shall be provided with a substantial enclosure at least three feet six inches high. Such enclosure may be vertical or inclined outward at approximately forty-five degrees, and shall consist of boards laid close together and secured to braced uprights, of galvanized wire screen not less than no. 16 steel wire gage with a one-half inch mesh, of corrugated metal, or of solid plywood. Temporary removal of portions of the enclosure shall be permitted for handling material.
NYC Administrative Code § 27-1021 (2001). IPC also cites § 23-1.18 of the New York Codes, Rules and Regulations which contains similar provisions for protection of workers engaged in construction or renovation of a building. See NYCRR § 23.1-18 (2004). Based on Plaintiff's deposition testimony regarding the presence of water on wood involved in the accident, motion in the flooring plank, and the height of the bridge enclosure, IPC asserts that summary judgment must be denied because a jury could find that Jerrick failed to comply with the requirements of, inter alia, subsection 27-1021(b)(6) of the NYC Administrative Code. Although Jerrick presents contrary evidence concerning the cause of the accident and contests IPC's interpretation of Plaintiff's deposition testimony, it fails to carry its burden of demonstrating that there is no genuine issue of material fact as to its compliance with the sidewalk shed construction requirements of local law and, thus, as to whether it may have been negligent in the construction or maintenance of the bridge. Plaintiff's testimony regarding wet wood in the area of the 2 x 4 that became loose and that the bridge enclosure was too low and too weak to stop his fall is, furthermore, sufficient to demonstrate the existence of a genuine issue of material fact as to the possible role of negligence by Jerrick in causation of the accident.

  Thus, material issues of fact exist which preclude summary judgment. Plaintiff has adequately demonstrated that there are questions of fact as to whether the bridge flooring and barrier wall were improperly constructed and maintained, and whether this improper construction and maintenance was the proximate cause of Plaintiffs injuries.


  For the foregoing reasons, Third-Party Defendant Jerrick's motion for summary judgment in this matter is denied. The parties shall appear for a settlement conference before Magistrate Judge James C. Francis IV, at 500 Pearl Street, New York, New York, Room 18D, on May 10, 2004, at 11:30 a.m. The final pre-trial conference before the undersigned is adjourned to May 28, 2004, at 3:45 p.m.



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