Demski v 498 Seventh, LLC

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Demski v 498 Seventh, LLC 2012 NY Slip Op 30595(U) March 9, 2012 Supreme Court, New York County Docket Number: 104813-09 Judge: Judith J. Gische Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] I I FILED MAR 12 2012 I I [* 2] 8UPREMC COURT OF THE STATE OF N W YORK E COUNTY OF N W YORK :h 8 PART 10 E X Eric E. Demriki and Pamela Darcy-Demski, PlafntiFF, DecIsionlOrder Index No. 114418-2010 Seq No.: 001 - against 498 Seventh, LLC, George Comfort l% Sons, Inc., Geiger Construction Co., Inc and Everest Scaffolding, Inc., Defendants. Present: Hon. Judith J. GiSGhQ J.S.C. Rechtlon, as mquired by CPLR 2219 [a], of the papers considered in the review of this (these} rnotbn(s): Papers Numbered Everest d m (3212) w/GOS aff!lrm, axhs ................ PltPa opp w/AMM affirm w/exhs ................ Gefger opp wENM affirm ........................................... 3 w:i2.m* 4 Eversst reply to Geiger w/GGS affirm ................... ....... 6 Everest reply to Pttf w/GGS aMnn . . . . . . . . . . . . . . . . . . Stipe to adjourn (various) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 F.I. t:E:D::::: . I . . I . . Upon tbe fotwgoing papers, the court's decisbn and order Is 8s fdlows: Gische J.; Thla la an action for personal injuries. Issue has been Jofnadby all the defendants, including the moving defendant, Evemitt Scaffolding, Inc. ("Eva~t"). Evmst weka summary judgment dlsrnklng the complaint, as well 88 all cross claims against tt. Plaintiff opposas the motion as doas codefendant Geiger ConstructionCo., Inc. ('Geiger"). Once issue has been Joined,aurnma~y~udgmsnt Is availabkt, relief even Htha note of issue has not yet been flied. Since this m o t h complies with the Pagelof 13 [* 3] mqulramsnts of CPLR 3211 (a), it will be d d d d on the meribs (CPLR 9 3212; of N w York. 2 NY3d 648 [2004l). FacQ The followlng fads are Bstablbhsd or unrafutad: On October 21,2008, plaintiff o k n r e d chunks of cement falling off a building as he was walking trom 3 p Street to 36* Street on the west side of Fh Avenue. One of these pieces struck him on the lag and he blacked out. He later learned that the "atrnmrpleces he had seen were actually pieces of clay or terra cotta that were part of a decorative cornlos on the building located at that intersection which was undergoing repolntlng pursuant to Local Law I 1 of 1998 ("Local Law 1I/QV).The building, 498 7 h t Avenue, New Yark, New York ("building"), b awned by defendant 498 Seventh, LLC (IIownet') and managed by George Comfort & Sons, Inc. ("property manager). Following the accidsnt, plalntlff was hospttalized and underwent surgery. He claims to suffer from ongoing neuroioglcal damage and daily pain. Local Law 11/08 raquims pedodfc inspectlona of a buldlng's fawde and that the inapectlon be made by an engineer. The owner hired non-party Consulting A s d a t e s of New York (%ANY') to do the inspection and prepare a report identifying the work that needed to be done. In ita report, CANY noted the deteriorated condbon of the fagade and that the masonry and terra cotta dement8 needed extensive repairs becauss they worn unsafe. Following that repart, the properly manager hired dabridant Geiger Construction Co., Inc. ("Gstiger") afhxtuatethe repairs. Plaintiffs to accident occurred while Geiger was working on the fapde at the 18" floor. Geiger's work entailed cutting, banging and hammering the fapda to loosen the m c k e d Page2of 13 [* 4] masonry, brick and terra mtta surfaces. While the work waa being performed, W g e r had two hanging or suspension scaffolds at the bulldlng. One scaffold was an the Avenue side o the bulldlng and the other scaffold was on 37m Street sMa. f Everest had its own,separate wntract with ths property manager. In Its contract dated October 22,2007, Everest agreed to furnish, install (and later remove) a heavy duty sidewalk shed' on slther side of the building. Everest provided and Installed one sidewalk shed on 7th Avenue and another on 37" S r e . The 7"" avenue sidewalk shed tet WBB 120 feet long, 16 feet high and 17 fsat wide whereas the 37" Street sldewsllk shed was 130 feet long, 16 feet high and 10 feet wide. After Everest completed Installation of the two sheds, It did not return to do any furthsr work at 498 Avenue untll after plaintlW8 accident. Following plaintiRs addent, the New York City Department of Buildlng's (*DOB3 scaffold aafety team did an inspeetron and issued Everest an ECB vlolation. The ECB violation, dated October 22,2008, is a atop work order based upon the sidewalk shed "not meet[lng] d e spt!!cifications." The section of the codes &MI in the ECB vlolation are BC 3307.6 and 27-1021. The stated remedy la that the "shed shall be extended 20 tt beyond the building structum.' Everest was also issued a $2,400 flne. After the accfdent, Everest and the property manager entered into a new contract dated October 23,2008 ("new contract"). The new contract was for Everest to extend 'Sldawalk bridges are also known as "stdawalksheds." Regardless of the tmlnology used, a bridge or shed is a structure placed above the sidewalk to protect pedeertriana. Such bridges or sheds are commonly wood and palnted blue. Slnce the parties use the term "skfewalkshed,"the court will do so as well although the contract I s actually for B "sidewalk bridge." Page 3 o 13 f [* 5] the existing sidewalk shed on the 3 m street side. Everest was also to furnish and 7 install 370 quam fast of mesh catchall along the perimeter of the sidewalk shed. PlaInWa negligence claims against the defendants are based upon thsfr alleged failure to employ adequate safety measures to protect pedestrians near a eonatwc2lon site. Specif~cally, plalnM claims that Everest was requlred, but falfd, to maintain a mesh catch-all at the premises and that it improperly constnrcted and maintained Its scaffolding at the construction site. Awording to plaintiff, the dcbrh from the ?8*floor bounced of the shed before striking him and he claim that had there been a mash f catch-all or netting, the debris would have fallen back onto the shed, not onto the street. Argument8 Everest contends that It dld not negligently constructs its shed and that they complied with the requlrements of section 23-1.18 [b]p] ofthe New York State Code Rules and Regulations (also known as the Industrial Code) (12 NYCRRJ whlch provides as follows: (b) Sidewalk shed construction, (2) The outside edge and the end8 of the deck of every sidewalk shed shall be provided with 8 Substantla1 enclosure at least 42 inches In height, consisting of boards not less than one inch thlck laid dose, ur of screening formed o not f lesa than No. 1B U.S. gage steel wire mesh wlth openings which will re]& a one and one-half Inch diameter ball, or of corrugated metal sheet of not Iuss than No. 22 LIS. gage or of exterlor grade plpmod not lees than one-half Inch thick. According to Everest, 12 NYCRR 23-1.l8[b][2] and New York Clty Administrative Code 27-1021 [bJ[Spam the same, each providing for the imtallatlan of B p w o d The New York Chy Admfnlstrattve Ccde Indicates that Subchapter 19, Artlcles 1-13 88cf1on8 27-1 007 through 27-1069 were repealed by Local Law 33/2007Q 9, Page 4 of 13 [* 6] parape, wall "of mesh enclosure, not both. Chrlstopher Domes, the owmr of Everest, was deposed and asked why he decldd to install vertical plywoad Instead of netting, considering his claim that he could have installed either one. He stated that Evemat only installed netting or rneah if requested by the contractor, managing agent or "whoever%worklng on the building." In tho= situations, the installatlon of netting is something negotiated and in EVe!rat'8 contract. Hare, Everoat's contract with the property manager did not call for the installation of netting or mesh. Downee was also asked how, when constructing the shed, Evemat decided what the wldth of the shed should be, i.e. how much of the sidewalk was covered. Dowries t&ed that he constructed the shed based upon what he believed would be a reasonable distance rm the cub. When pressed about what materlala ha used to f o make that determination, D m e 8 responded "I don't really know." Downes estimated the ddewalk on avenue WIS "around 17 feet, probably a couple more feet, maybe 10 feet, 1 don't know." Everest contends that the actlons by Gaigete employees were the Immediate cause of plaintiffs accident because Qeiger's employees were banging and hammering on the cornice, caualng the piece of terra cotta to fall and sMke the plaintiff. Everest d e n k having any responslbllttyfor directing or supemhlng Geiger's employees. Finally, Everest contend8 that the ECB violation that was Issued after plaintiffs acefdentwas for the J p Street shed - not the shed on 7' avenue where plalntMwas effective July 1,2008. [See Title 28 footnote]. Page5 of 13 [* 7] - walking when the addent occurred and, therefore, the viohtion should not reflect on whether Everrest should have installed mesh or netting on avenue. Plaintiff contends that Everest has failed to prove it is entitled to summary judgment because, among other things, Evemt has not provMed the affidavtt of an expert familiar with the code provisions and regulations that Everest denies were vlalated. Plaintiff also claims this motion k premature boause Zt intend8 to astve an ! amended bill of particulam kfom filing the note of issue. In support of its opposklon to Everest's motion, plaintiff provide6 the sworn afidavit o its own expert, William Marletta, PhD, C.S.P., a safety consultant. Marletta f stat- that he mvbW8d varioua materials in &is action, Including the deposttlon transcripta, and personally inspected the bulldlng whew the construction was taklng place. He states that he Is famlllar with oonatrudion safety industry practices. Marletta opines that the sldewaik shed Everest erected was in violation of industry standards and did not conform to good and accepted safety practlces. Marletta oplnes that t k a vlolationa were a subsbntial contributtng factor to plalntm being injured. According to Marletta, the tarp for Geiger's swing s M o i d did not extend verblcally out to the edge of the cornlce, meaning the cornice was exposed by some 12 inches. Since work being done by Geiger entailed banging and hammering, these vibratloner caused a l m e piece of debris to fall past the tarp. The pi- apparently then b o u n d or ricocheted into the street where it stnrck pfaintii. This infomalion is taken by Marlem from an incident report that the pmparty manager prepared after the addent. Marletta a b opines that, based an CANYs pre-pointlng report, Everest was Page6of 13 [* 8] aware of the "extenshe damage"to the terra cot4 and brldc masonry at roof and that these conditions were "unsafe." According to Marietta, Everest knew, or should reasonably have antlcipated, that such decrepit structums pbsed a substantial risk to pedestrians below and, therefop, Everest should have installed a mesh catch all. Marietta opines that even If Evereat dld not have a contractual obligation to install netting or mesh, Everest Ignored industry standards for pedestrian safety by not installing one. Thus, Marletta opines that Everest had a duty to consldar all the details of the building and project in declding what kind of p r o t d o n pedesbians needed. He alao opines mat the shed was not built wide enough as it did not extend the full wictth of the sidewalk and Down= apparently guessed how wide the sMawalk was. Plaintiff Identifiesthe following codes and regulations as appllcabls to the facta of thk caw and having haan Violatsd: 8C 3307.6.2 (NYC Construction Code) 8C 3314.1 (NYC Constnrction Code) 12 NYCRR Q 23-1.33 BC 3307.6 appllaa to "SklewalkSheds" and BC 3307.6.2 sets forth requlrements about the " a m s to be protsctsd." Those mqufmmenta are as follaws: Protection shall k provided for those sidewalks or w a l h p that am In front of the bulldlng lo be constructed, altered, or demolished. SMewalks or walkways In a plaza or other similar space that lead from the street t an entrance o exit o r into or out o the building that cannot be officialty closed f shall be almllady protectd. Where deemed necessary by the Commiwioner, the deck shall cover the entire wMth of the sidewalk or waIkway in front of the bullding, except for reasonably small clearances at the building llns and the curb. In all other instances, the Page7of 13 [* 9] sidewalk shed shall protect the sldewalk or walkway to a minimum 6 foot (1624 mm) width. Sidewalk sheds may extend beyond the curb to such extent as may be approved by the Department of Transportation pursuant to a permit from such department, Unless constructed solely to comply with Section 3307.3.1, b 3, sMewalk sheds shall extend 5 feet (1524 mm) past r n the building when the building is less than 100 feet (30 480 mm) In height, and 20 feet (0096 mm) past the bullding when ths building is over 100 feet (30 480 mm) in height, regardless of whether such extensions am in front of the property belng developed or In front of adjacent property. Extenslons of sidewalk sheds complying wtth the foregolng shall be 'constructedso as not to unreasonably obstruct, either visually or physically, entrances, egress, drhrewayt, and show windof adjacent properties. BC 3314.1 applies to protection of persans passing by construction, demolitlon o excavation operations: r 3314.1 Scope. All scaffolds shall be erected and malntalrted that the safety of public and property will not be endangered by falling material, tools or debris, or by collapse of the scaffold. 80 Section 12 NYCRR 5 23-1.33[a][l J of the Industrial Code applfes to construdlon aites, awn when the person injured Is not 8 construction worker. Thls d e &on provides, in relevant part, that "reasonable and adequate p r o t d o n and safety shall be prodded for all persons passing by areas, bulldings or other structures in which construction, demolition or excavation work Is belng performed." 12 NYCRR 5 23-1.33 [a] [2] requires that every wnstrudion site 'shall be 80 constructed, shored, equipped, guarded, arranged, operated and conducted a8 not to endanger any penron passing by." Gelgger adopts all of plalnWs arguments, adding that even if Everest did not Page 8 of 13 [* 10] mu88 the terra cotta to fall, Everest had e duty to keep pedestrians safe from falling debris by building a shed wide enough or installing a mesh catch all. In reply Everast first urges the court to reject Geiger's opposltlon as untimely. Everest also claims it dM not have to provide an expdt"8 affidavit to support Ita motion because the jury m easily look a the code and decide whether or not the, sidewalk n t shed was nagitgently erected. Everest states further that Marietta's affidavit ahould not be conslderd by the court because it h nhollow," fllled only wlth assurnptlons without any factual basia. Everest also claims that Marietta has not a d d m a d BC 3307.0.4 [e] which sets forth tha requiramentsfor the construction of sidewalk sheds. Thla &on requires that: 6. The outer side and ends of the deck of the shed shall be provided with a substantial endosure at least 3 feet 6 Inches (1087 mm) high. Such endosure may be vertical or lncllned outward at approxlmatdy 45 d e g m , and shall conslst of boards laid close together and secured to braced uprights, of galvanized wire screen not lass than no. 18 steel wire gage with a M inch (13 rnm) meeh, of corrugated metal, or of solid plywood. Temporary removal of partiarts of the encbure shall be permittedfor handling material. Everest argues that Industrial code 23-1 .18 applles to sidewalk shed constnrction and that &Ion 23-1 . I 8 [b][2] q u i r e 8 that: The outside edge and the ends of the deck of every sidewalk shed shall be provided with a substantial enclosure at least 42 inches fn helght, conslstlng o boards not lass f f than one Inch thlek laid close, or o screening formed of not less than No. 16 U.S. gags steel w r mesh with openings ie whi& will reject a one and onehaif inch diameter ball, or of cormgated mstal Bheet of not Ips8 than No. 22 US. gage or of exterior grade plywood not less than one-haw Inch thlck. Page9 of 13 [* 11] Dhcwston Where a defendant I the proponent of a motion for summary judgment, the s defendant must sstabliah that the cause of action has no merit, sufflcient to warrant the court, as a matter of law. t dlrect judgment in ihfavor @u$h v, S, c o t NY2d 738,739 [1993]; winerrrad v. N ew Yo& m w., 82 urlhr. Med. Ctr., 84 NY2d 851,853 [1085l). The defendant's motion must be denled H it falls to produrn admimibk evidence demonstrating the absence of any material Issues of fact (Winearad Y. New ,. supra; Zyckeman v. C h of New Yo*, 40 NY2d 557,582 [1880]; m m,307AD2d 230 [IdDept. 20031). Evamst contends that It dld not create the dangerous condfflon alleged and that, in any event, it complied wfth all applicable codes and regulations in constructing the a b d . The bsue of whether a dangerous mnditlon exists depends on the peculiar f a d and circumstances of each case and Is generally a question of fact for the jury , 181 AD2d 118 [l" Dept lSSO]). Furthermore, a defendant's oompllhxt wlth statutory or mgulatory enactments does not preclude a finding that the defendant violated a common-law duty LKeltv v, Metrorr,o l i n Ins, and Al.muItv Co., 82 A.D.3d 18 [lH I]). Dept 201 Regardless of whother there is a code or regulatlon requiring that Everest erect a catch-all mesh or netting on the sidewalk she& it bulk, Evereat 8tlll has a m m o n law duty to take mhlmat precautionsto protect pedestrians traversing the area where repolntlng is being done from falling debrls. hm.quantly, Everesfs argument, that it complied with all codes and regulations, does not, alone, warrant the grant of summary judgment in its favor, as a matter o law. f Page 10 of 13 [* 12] DCscumfon Where a defendant is the proponent of a motion for summary Judgment,the defendant muat establish that the cause of action has no mertt, sufficient to warrant the court, as a matter of law, to dlrect Judgmentin its favor (Buah v. St. Claire's Hwn.,82 NY2d 738,739[1993]; yvit-~eclrav. New Yolk Yntv. M d ,Ctr., 64 NY2d 851,853 d [1985l). The defendant's motion must be denied H It falls to produce admissible evidence demonstrating the absence of any material h u e s of fact ( W i m d v, New ,. v.,sjC - supra; 49 NY2d 557,582 [lQSO]; ,307 AD2d 230 [lst Dept. 20031). Everast contends that it did not mate the dangerous condftlon alleged and that, in any event, it cornplied with all applicable codes and regulations in constructing the shed. The, isaue of whether a dangerous condition adats depends on the pealiar facts and circumstances of each case and i generally a question of fact for the jury s achtman v. w, AD2d 118 [l" 1990l). Furthermore, a defendant's 161 Dept compliance with statutory or regulatory enactments does not preclude a flndlng that the defendant violated a common-law duty v. Metropolitan Ins, and A n Co,, 82 m A.D.3d 16 [PDept 20113). Regardless of whether there Is a code or regulation requlring that Everest erect a catch-all meah or netting on the sMewalk 8hQd8 it built, Everest stlll has 8 m m o n law duty to take minimat peecautlons to protect pedestrlana traversing the area where B pointing Is being done from falling debris. Consequently, Everest's argument, that it complied with all codes and regulations, does not, alone, warrant the grant of aummary judgment in its favor, as a matter of law. Pageloof 13 [* 13] Nor, however, is plaintiff wrrect that Everest's fallurn to provkls an expert's efftdavit warrants denial of summary Judgment. This is not a medical malpractice adion where a rnedlcal expert's affidavit is asssntlal @ h a w v. Promact Hmpital, 68 NY2d 320 [ 1ass]). Thus, it is up to the defendant to decide whether o not to provide r such an affidavit on Its motlon, Everest argues that the codes and mguletiona it relies on are easy to follow and clearly prove its defense, that It dfd not negllgently construct the sldewalk shed. Akhough the absenca of a defense expets affidavit ie not fatal to defendant's motion in the technical sense, Everest's averments about which codes and regulatlons are applicabfe to aldewalk sheds are contained in the afflrmation of b attorney and based on Downe's testimony. It Is Everest's attorney who states that "[n]eltherthe New York City Building Code nor the New York City, nor case law require eidewalk sheds t have o both parapet walls and netting around their primetars..." Downe's testlmony Is slmpty that he complied with "Chapter 33." Theweb statements have no probative value as they are, on one hand, the statement of an attorney and on the other hand, simply the opinion o one of the partlet?. As a general rule, where the issues on trlal Involve f professional or scientific knowledge or sklll not within the range of ordinary training or Intelligence, an expert's opinion is valuable uufeI v. Green, 84 N.Y.2d 795 [1995]). PlalnWs expert opines that glven the condition of the bullding's t m cotta and a masonry work, Everest should have used a rneah catch-all or nettlng to make sure none of the falling p l e w would strike pedestrians below (see,Kelly v. Ins. aM nu6/ Co,, supra). Everest contends Marietta's oplnbn is hollow and baaed upon conjecture. The court dlsagreee. Marletta's affidavit is based upon his review of Page11 of 13 [* 14] various documents produced In discovery, deposklon transcrfpts, an on-site lnspectlon and his own experience in such matters. His opinion 1 atso supported by facts found in 3 the record. Marietta's affidavit Is not "hollow" and, to the contrary, contains statements that would be useful to the average juror. In any event, a defendant seeking summary judgment cannot merely polnt to the deficiencies in the plaIntWs case to satisfy h ~ l v n burden which le to prove its freedom from negligence (me, Totten v. Cumberland m, 57 AD3d 653, 654 [2nd Dep't 20081). Inc., Since the court only has Everesfs owner's statement about what the applicable codes and regulations require when erecting a sidewalk shed, defendant has falled to prove its prima facie cam,which Fs that it was not negligent In erecting h shad. The s piahtiff has, in any event, raised triable bsues of fact. Contrary to E v e W s arguments, it has not proved that it did not violate any of the codes and regulations It claims apply or that the code sections and regulations which plalntM daima apply are inappIicable. Everti& ha3 not shown i is entitled to summary Judgmentdismissing the complaint and t c m s daims against it, as a matter of law. Therefore, E v e M s motion is denied. Arguments by plaintiff that Everest brought its motion too soon because it anticlpates serving an amended bill of particulars have not factored into the court's decision, denying Everests motion. Concluslon In accordance with the foregoing, It is hereby ORDERED Everesfer motion for summary judgment I denied for the reasons that s atated; and it is further Page 12 of 13 [* 15] I ORDERED any relief requested but not spectflcally addressed k hemby that denied; and It Is further ORDERED this constitute8 the decision and order of the court. that Dated: New York, New York March 8,2012 So Ordered: FILED NEW YORK COUNTY CLERK'S OFFICE Page 130f 13

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