Opinion
2378/2012
05-21-2018
Stephen DEANGELIS, Plaintiff, v. FRANKLIN PLAZA APARTMENTS, INC. and Paul Rifkin, Defendants.
Bernard M. Reilly, Esq., William Schwitzer & Associates, P.C., 802 Second Avenue, New York, New York 10017, Attorney for Plaintiff James J. Nally, Esq., Martin Clearwater & Bell, 220 East 42nd Street, New York, New York 10017–5842, Attorney for Defendant
Bernard M. Reilly, Esq., William Schwitzer & Associates, P.C., 802 Second Avenue, New York, New York 10017, Attorney for Plaintiff
James J. Nally, Esq., Martin Clearwater & Bell, 220 East 42nd Street, New York, New York 10017–5842, Attorney for Defendant
Lara J. Genovesi, J.
Recitation, as required by CPLR § 2219(a), of the papers considered in the review of this motion:
Papers Numbered
Notice of Motion/Cross Motion/Order to Show Cause and
Affidavits (Affirmations) Annexed 1, 2
Opposing Affidavits (Affirmations) 3
Reply Affidavits (Affirmations) 4 Other Papers:
Introduction
Upon the foregoing papers, defendants Franklin Plaza Apartments, Inc. and Paul Rifkin move for an order, (1) pursuant to CPLR § 3212, granting summary judgment in its favor dismissing all causes of action based on Labor Law §§ 240 and 241 ; (2) deleting defendants Franklin Plaza Apartments, Inc. and Paul Rifkin from the caption; (3) directing entry of judgment in favor of defendants Franklin Plaza Apartments, Inc. and Paul Rifkin; and (4) for such other and further relief as this Court deems just and proper.
Plaintiff, Stephen Deangelis, cross moves for an order pursuant to CPLR § 3212 for an order granting partial summary judgment as to his claims brought pursuant to Labor Law § 240(1) against defendant Franklin Plaza Apartments Inc., together with such other and further relief as this Court deems just and proper.
Background & Procedural History
This is an action to recover monetary damages for personal injuries allegedly sustained by the plaintiff, Stephen Deangelis, on May 18, 2011. Plaintiff commenced this action on January 31, 2012, claiming violations of Labor Law §§ 200, 240(1)–(3), and 241(6). Issue was joined on April 12, 2012. The parties engaged in discovery and plaintiff filed the note of issue and certificate of readiness on July 25, 2017.
Plaintiff allegedly sustained personal injuries when he fell from a ladder in the basement of Franklin Plaza Apartments Inc. (Franklin). Plaintiff testified at an examination before trial (EBT) on August 16, 2013 (see generally , Notice of Motion [1], Exhibit D, EBT of Stephen Deangelis). At the time of the accident, plaintiff worked as a heating technician for Approved Oil. The general duties of heating technicians are "repair, place parts on burners, and solve problems" (Deangelis EBT at 12). On the date of the accident, plaintiff and his co-worker, Michael Giaquinto, worked on the boilers in the sub-basement of Franklin Plaza Apartments. Plaintiff was the "lead mechanic" and Michael Giaquinto was working under him (see generally , Notice of Motion [1], Exhibit G, EBT of Michael Giaquinto, 15). The job also included welders and "boiler mechanics" from outside companies (Deangelis EBT at 28–29).
Plaintiff testified that on the day of the accident, there were three welders and no boiler mechanics at the jobsite (see Deangelis at 29). He later testified that he could not remember who else was there on the day of the accident (see id. at 30).
Defendant Paul Rifkin, former manager of Franklin, testified at an EBT on April 10, 2014 (see generally , Notice of Motion [1], Exhibit H, EBT of Paul Rifkin). Franklin owns a high-rise apartment complex located at 2075–2085 Second Avenue, New York, New York. The boiler room, located in the sub-basement of the main office building at 2085 Second Avenue, is the source of heat and hot water for the entire condominium complex. There are seven boilers in the sub-basement of Franklin Plaza Apartments. The boilers are designated numerically, one through seven. Boilers one through six are "brick set" boilers, while the largest boiler, number seven, is a "Scotts Marine" boiler (Deangelis EBT at 35).
Rifkin stated that the City of New York Department of Buildings (DOB) conducts a test on the boilers "tri-annually" to ensure that the boilers are operating at a minimum efficiency level. Prior to the DOB test, Franklin has a "filing" and the equipment must be prepared for the test. When Franklin receives notice of the test requirement, they forward that notice and secure a purchase order for work to be conducted on the boilers, to ensure that they will pass the inspection (see Rifkin EBT at 54–56). Thereafter, the City is scheduled to inspect and test the boilers. Franklin hired Approved Oil to perform this work on the boilers prior to the DOB tri-annual test inspections. Plaintiff testified that the work takes roughly one day per boiler (see Deangelis EBT at 34).
Vincent Siciliano, service manager at Approved Oil, testified at an EBT on October 1, 2013, that plaintiff was assigned to Franklin to conduct "service prep for DAR" or "Department of Air Resources for a test" (Notice of Motion [1], Exhibit E, EBT of Vincent Siciliano, at 19).
Q. Very briefly, what would prep for DAR encompass?
A. Making sure the smoke alarms worked, performing an efficiency test on the boiler to make sure it's going to meet New York City criteria and smoke alarm, any carbon monoxide detectors, the right amount of oil is being delivered to the burner, basically that's that. It was a pre-test inspection if I'm not mistaken.
Q. That's what you call it pre-test inspection?
A. Or prep for DAR.
Q. Is this type of call that is pretty common, in other words, pre-test inspection before the inspector gets there for the DAR?
A. Yes, in New York City it's a common thing.
(Siciliano EBT at 19–20).
However, to perform the test, plaintiff also had to replace malfunctioning components of the boiler. Plaintiff described this work as a "tune up" (see Deangelis EBT at 22). According to plaintiff, a "tune up" consists of "nozzles, cleaning filters, air filters, compressors, oil fluids, replace certain parts" including "the metering pumps, oil pumps" among other things (id. at 34).
Q You mentioned in the testimony that you were replacing meter pumps?
A Those pumps are right here. Right there. (Pointing.) That was the meter to go to the nozzle, the compressors are on the side.
Q Did you replace air compressors?
A No. I put in changes for compressors and metering pump on number three, and a compressor on number five, which I couldn't take the test on those two boilers, because I couldn't see no results.
Q The oil pumps were they replaced?
A I didn't get to the pumps. They were in the back. They were leaking. It wasn't going to hurt my testing.
Q I'm not talking about your testing. Was it part of the process replacing the oil pumps?
A Yes, yes.
Q So is it a fair statement that weren't [sic ] there just to do a test to see if the—
A No, no. In order to get these boilers working up to par and good efficiency, you definitely had to work the burners.
Q You had to repair the burners?
A Yes. It was going to be a nice long two—if I would have finished up, it would have been two or three weeks there. Before the inspectors came for the inspection. I always go a month before to test them.
(Deangelis EBT at 111–113).
Michael Giaquinto described the work he and plaintiff conducted as "preventative maintenance" (Giaquinto EBT at 40).
Q. Now, what work were you doing in the boiler room when you went down there?
A. We were changing and repairing a worn-out linkage. Linkage on the burners.
Q. Can you describe what a linkage is?
A. It's just a threaded rod with ball joints and nuts and bolts.
Q. Does the linkage wear out over time?
A. Yes.
Q. Over the course of using the boiler, the linkage wears out?
A. Probably within a year or so. Mostly ball joints.
Q. After returning to the boiler room, what did you do?
A. We started continuing on the linkage. I guess the other two boilers. And then, he instructed me to replace a control on another boiler and he said he was going to do tests on the breaching.
Q. What is a test on the breaching?
A. It's a device meter you put in the smoke pipe, the flue pipe, to test the drift or CO2.
Q. With respect to the linkage that wears out and requires replacing, can you give me an estimation of how frequently it needs replacement?
A. I would say once every two to three years.
Q. What is the function of the linkage, that causes the wearing and tearing that requires replacement every two or three years.
A. The motor is what drives the linkage which turns the pump.
Q. And the pump is used to move water through a boiler or something else?
A. Oil. It's a fuel pump.
Q. Would it be fair to characterize the linkage as something analogous to like, an axle of a car?
A. More like a drive shaft. It's in between of a motor and a pump.
(Giaquinto EBT at 15, 18, 39–40).
According to plaintiff, the project consists of numerous tests that must be performed on the boilers. Individual tests must be conducted on each boiler and then a "major test at the end, on all seven" (Deangelis EBT at 37). Plaintiff's deposition testimony about the work conducted that day is disjointed. From what this Court can extrapolate, on the day of the accident, plaintiff worked on boilers numbered three, four and five. Plaintiff was unable to perform the tests on boilers three and five because "the boiler was giving me problems. I needed parts to replace that day" (id. at 44). Likewise, plaintiff was unable to work on boiler number two because it was "being repaired by welders" (id. at 40). Welders were on site to "replace tubes" in boiler number two (id. ). Giaquinto worked on boilers numbered six and seven (see Giaquinto EBT at p 36). It is unclear from the EBT testimony whether they worked on boiler number one that day.
"That boiler was down because it needed repairs" (Deangelis EBT at 46).
What is clear, is that plaintiff was in the process of performing a test on boiler number four when the accident occurred (see Deangelis EBT at 39–40). To perform the test, plaintiff had to insert instruments into the chimney of the boiler. Welders placed "test holes" in the chimney of the boiler (id. at 40). Plaintiff utilized an extension ladder to reach the test holes in the chimney of the boiler, to conduct his tests (id. at 70). While climbing the ladder, plaintiff was holding the approximately 12–inch–long temperature gauge (see id. ). Plaintiff was roughly two or three rungs from the top of the ladder when it "shook and gave way", causing him to fall (id. at 62 & 69).
Q Describe to me how the accident happened.
MR. PFLUGER: Objection to the form.
A Quick.
Q Well, what were you doing when the accident happened?
A That's what I remember.
Q Were you still climbing?
A I went to the top of the ladder to stick my probe in, the temperature gauge in the test hole, the ladder shook side ways [sic ], and it went straight down. Done deal.
(Deangelis EBT at 69–70).
Plaintiff testified that these boilers did not have ladders affixed to them (see id. at 48). However, "each boiler had its own extension ladder in the back already there" (id. at 49). On the contrary, Franklin manager Paul Rifkin testified that the boilers had ladders welded to the side of them (see Rifkin EBT at 65). Further, Rifkin testified that the sub-basement had hydraulic platforms used to go up the side of a boiler, as well as various ladders (see id. at 36).
Plaintiff identified the ladder he used in a photograph marked as Exhibit H at his EBT (see Deangelis EBT at 54–55). However, the EBT exhibits were not annexed to the moving papers.
Plaintiff testified that he was not given any specific instructions about the use of ladders when he was given this assignment (see Deangelis EBT at 62–63). The ladder used had no "tie off devices" such as safety ropes (id. at 66). It had extension clips, but plaintiff did not test the extension clips because the ladder was already "affixed and in an upright position to the chimney" (id. at 66). Plaintiff assumed that the welders left the ladder in this position earlier in the day when they made the test holes. Plaintiff did not check whether the extension clips were locked (id. at 67–68).
Plaintiff testified that while he waited for the ambulance, he noticed oil, dried oil and "a lot of water on the floor" in the location where he fell (id. at 79). Although plaintiff testified that the ladder "shook and gave way" (id. at 62), and that the ladder "shook side ways [sic ], and it went straight down" (id. at 69–70), he later testified that he does not know why the ladder "slipped" (id. at 79–80).
Plaintiff's Affidavit
Plaintiff provided an affidavit, sworn to on December 11, 2017, wherein he states that when he arrived in the boiler room, "many of the tanks were leaking fluids" (Cross Motion [2], Affidavit of Stephen Deangelis at ¶ 3). Three welders worked on the boilers that day (see id. ). Plaintiff stated that they were not able to access boiler number one because the welders were "in the way" (id. at ¶ 5). They could not work on boiler number two because the welders were replacing a large section of steel on the tank. The third boiler was not functioning because the modulation motor needed repair (see id. ). The fifth boiler was not operating; the oil was below temperature and the boiler was leaking fluid on the floor. Plaintiff states that the electrical preheater was not functioning and needed to be replaced (see id. at ¶ 6). Because boiler number five was not operating, boiler number seven was running on "safety mode" (id. ). Plaintiff instructed his co-worker to remove the "fire-eye" relay from boiler five and place it in boiler seven (id. ). Plaintiff stated that "it was clear to me that the boilers required significant repair, as I could not even take preliminary tests on many of the boilers" (id. ). With respect to the accident, plaintiff stated, similar to his EBT testimony, that he climbed the extension ladder to work on boiler number four, when the ladder "shook and gave way and collapsed" beneath him (id. at ¶ 7).
Expert Affidavit
Plaintiff provided an affidavit from Kathleen Hopkins, Certified Site Safety Manager who has experience in safety, health and environmental management and site experience in the construction industry (see Cross Motion [2], Affidavit of Kathleen Hopkins at ¶ 1). Ms. Hopkins conducted a Construction Safety Analysis and opines that plaintiff "was involved in ‘repairing’ and ‘altering’ as contemplated by the State of New York Labor Laws at the time of his accident" (id. at ¶ 10). "Plaintiff proceeded to inspect boiler No. 4 and he began to perform tests on the breaching. This preliminary test is done to ascertain what repairs had to be performed on the boiler or if it was working properly" (id. at ¶ 8). In the process of this test, plaintiff fell from an "unsecured 18 foot aluminum extension ladder" (id. at ¶ 9).
Ms. Hopkins further opines that defendants failed to provide a safe worksite that was equipped with adequate protection for the plaintiff (see id. at ¶ 11, p. 4). "The Franklin Plaza Apartments had a duty, responsibility and authority to ensure that any of their ladders already set up for use was secured and therefore safe to use. The plaintiff was not provided with any braces, irons, ropes or other devices to secure a ladder and was never directed to do so" (id. at ¶ 11, p. 5). Ms. Hopkins opined, to a reasonable degree of professional safety certainty, that plaintiff's injuries were caused by defendants' negligence and their violations of Labor Law §§ 240(1) and 241(6), which "were direct, substantial and proximate causes of the Plaintiff's accident and injuries" (id. at ¶ 12–13).
Plaintiff Contends
Plaintiff contends that he was injured when he fell from a ladder while tasked to perform substantial repair and alteration of seven boilers, which were inoperable at the time of plaintiff's accident (Cross Motion [2] at ¶ 4). Plaintiff maintains that this work constitutes "altering" or "repairing", and therefore, it falls within Labor Law §§ 240(1) and 241. Plaintiff avers that the unsecured ladder was the proximate cause of plaintiff's injuries and he is, therefore, entitled to summary judgment as a matter of law under Labor Law § 240(1). Plaintiff contends that even if the cross motion is considered untimely, the relief requested is identical to that in defendant's motion, and therefore the cross motion is properly before this Court.
Plaintiff states that this was not a scheduled and routine maintenance call (see id. at ¶ 8). Plaintiff maintains that "three of the boilers were inoperable at the time of the accident and one was running on ‘safety’. Thus, plaintiff's job (to repair the boilers so as to bring them to a functioning level in order for them to pass the inspection) is not maintenance" (id. at ¶ 28). "Plaza employed six ‘firemen’ whose responsibilities were the maintenance of the boilers and the radiators in the apartments (Ex. H. pp. 14–15). However, PLAZA used an outside company, Approved Oil, plaintiff's employer, to repair the boilers when they failed, and also to prepare the boilers for inspections by the New York City Department of Air Resources ("DAR"). (Ex. F, p. 19; Ex. H, pp. 18–19; 54–56)" (Reply Affirmation [4], at ¶ 6).
Defendants Contend
Defendants contend that plaintiff's claims based on Labor Law §§ 240 and 241 must be dismissed. Defendants aver that plaintiff was performing routine maintenance and this type of work is not covered by §§ 240 and 241. With respect to Labor Law § 241(6), defendants contend that the "routine maintenance" was not performed within the context of "construction, excavation, or demolition work" and is therefore not protected by the statute (Notice of Motion [1] at ¶ 56). Defendants maintain that there was no construction, restoration or renovation work being performed in the boiler room at the time of plaintiff's accident (see id. at ¶ 59).
Defendants further contend that plaintiff's cross motion is untimely as it was made nearly five months after the note of issue was filed. Although cross motions may be considered if the relief sought is "nearly identical" to that of the original motion, defendants maintain that plaintiff's cross motion should not be considered because it is not "nearly identical" to the motion (Affirmation in Opposition and Reply [3] at ¶ 28). Also, defendants aver that plaintiff's affidavit should be disregarded by the court because it was signed four years after plaintiff's deposition testimony and contradicts the deposition testimony by reclassifying the work performed (see id. at ¶¶ 17, 34–35). Defendants maintain that should the court consider the affidavit, it should find that the affidavit raises questions of fact which require denial of plaintiff's cross motion (see id. at ¶ 35). Plaintiff's expert affidavit from certified Site Safety Manager Kathleen Hopkins should also be disregarded because it contradicts the deposition testimony. The testimony does not demonstrate that a team of welders replaced a patch of steel in the side of boiler number two. Nor does it state that boiler number five was totally inoperable. Furthermore, the question of whether the statute is applicable to the facts herein is a question of law for the court to determine and is outside the bounds of Ms. Hopkin's expertise (see id. at ¶¶ 22–23).
Discussion
Summary Judgment
"[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate absence of any material issues of fact" ( Stonehill Capital Mgmt., LLC v. Bank of the W., 28 NY3d 439, 68 N.E.3d 683 [2016], citing Alvarez v. Prospect Hospital , 68 NY2d 320, 501 N.E.2d 572 [1986] ). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Chiara v. Town of New Castle , 126 AD3d 111, 2 N.Y.S.3d 132 [2 Dept., 2015], citing Vega v. Restani Const. Corp., 18 NY3d 499, 965 N.E.2d 240 [2012] ). Once a moving party has made a prima facie showing of its entitlement to summary judgment, the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (see Fairlane Fin. Corp. v. Longspaugh , 144 AD3d 858, 41 N.Y.S.3d 284 [2 Dept., 2016], citing Alvarez v. Prospect Hospital , 68 NY2d 320, supra; see also Hoover v. New Holland N. Am., Inc., 23 NY3d 41, 11 N.E.3d 693 [2014] ).
Labor Law § 240Defendant moves for summary judgment, dismissing plaintiff's cause of action pursuant to Labor Law § 240. Plaintiff cross-moves for summary judgment as to his claims brought pursuant to Labor Law § 240(1).
Labor Law § 240(1) is designed to protect employees on construction sites from elevation-related risks. This section provides that:
"All contractors and owners and their agents ... who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed."
To meet their burden on a motion for summary judgment on a Labor Law § 240(1) claim, defendants must establish, prima facie, "that the plaintiff's work did not constitute erection, demolition, repairing, altering, painting, cleaning, or pointing of a building or structure within the meaning of Labor Law § 240(1)" ( Kearney v. Dynegy, Inc. , 151 AD3d 1037, 57 N.Y.S.3d 520 [2 Dept., 2017] ; see also Tserpelis v. Tamares Real Estate Holdings, Inc. , 147 AD3d 1001, 47 N.Y.S.3d 131 [2 Dept., 2017] ). "It is not important how the parties generally characterize the injured worker's role but rather what type of work the plaintiff was performing at the time of injury" ( Joblon v. Solow , 91 NY2d 457, 672 N.Y.S.2d 286 [1998] ). "While the reach of [Labor Law] section 240(1) is not limited to work performed on actual construction sites, the task in which an injured employee was engaged must have been performed during ‘the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure’ " ( Quituizaca v. Tucchiarone , 115 AD3d 924, 982 N.Y.S.2d 524 [2 Dept., 2014], quoting Martinez v. City of New York , 93 NY2d 322, 690 N.Y.S.2d 524 [1999] ; see also Holler v. City of New York , 38 AD3d 606, 832 N.Y.S.2d 86 [2 Dept., 2007] ).
"In determining whether a particular activity constitutes ‘repairing,’ courts are careful to distinguish between repairs and routine maintenance, the latter falling outside the scope of section 240(1)" ( Ferrigno v. Jaghab, Jaghab & Jaghab, P.C. , 152 AD3d 650, 59 N.Y.S.3d 115 [2 Dept., 2017], citing Esposito v. New York City Indus. Dev. Agency , 1 NY3d 526, 770 N.Y.S.2d 682 [2003] ).
There is no "bright line" rule regarding what tasks constitute repair work covered under Labor Law § 240(1), and what activities are deemed to be "routine maintenance," which is not covered. Rather, "the question of whether a particular activity constitutes a ‘repair or routine maintenance’ must be determined on a case-by-case basis" ( Riccio v. NHT Owners, LLC., 51 AD3d 897, 899 [2008] ). In making such determinations, courts must weigh various factors including the complexity and scope of the work. Thus, the mere replacement or tightening of a screw or pin in the arm of a nonmotorized "door closer" does not constitute repair work under Labor Law § 240(1) ( Thompson v. 1701 Corp., 51 AD3d 904 [2008] ). In contrast, replacing the entire door track on a malfunctioning elevator or replacing the bands on an automatic door constitute covered repair work ( Riccio, 51 AD3d at 899 ; Lofaso v. J.P. Murphy Assocs., 37 AD3d 769, 771 [2007] ). Another factor which must be weighed is whether or not the job involves the replacement of a missing, malfunctioning, or worn out component. Such work is ordinarily deemed to be routine maintenance ( Esposito v. New York City Indus. Dev. Agency, 1 NY3d 526, 528 [2003] ; Deoki v. Abner Properties Co., 48 AD3d 510 [2008] ; English v. City of New York, 43 AD3d 811 [2007] ; Barbarito v. County of Tompkins, 22 AD3d 937 [2005] ).
( Owens v. City of New York , 24 Misc 3d 1204(A), 890 N.Y.S.2d 370 [Sup. Ct. Kings County, 2009], aff'd , 72 AD3d 775, 898 N.Y.S.2d 493 [2 Dept., 2010] ).
In the instant case, defendants met their prima facie burden and established that plaintiff's work was maintenance and not a repair within the meaning of Labor Law § 240(1). It is clear from the EBT testimony provided, that Approved Oil was not hired to repair malfunctioning boilers, but to test the efficiency of the boilers and ensure that they were operating at a minimum efficiency for the Department of Air Resources test. Plaintiff referred to this work as a "tune-up" (see Deangelis EBT at 22–23). Vincent Siciliano, Service Manager at Approved Oil, referred to this work as "a pre-test inspection" or "prep for DAR" and stated that it is very common in New York City (see Siciliano EBT at 19–20). Michael Giaquinto, who worked under plaintiff on the day of the accident, described this work as "preventative maintenance" (see Giaquinto EBT at 40).
Plaintiff and Giaquinto both testified that to perform this "tune-up" or "preventative maintenance", certain parts of the boilers required repairs and replacement, such as meter pumps, oil pumps, compressors, burners, linkage, and control (see Deangelis EBT at 34, 44, 111–113; see also Giaquinto EBT at 15, 18, 39–40). Giaquinto testified that parts commonly wear out and require replacement. Contrary to plaintiff's contentions, there is no testimony to support the position that the boilers were in a state of disrepair when Approved Oil was hired to perform this work. Although the scope of work appears involved and complex, this is mainly due to the need to replace worn out or malfunctioning components of the boilers. Approved Oil, or a similar company, was hired every three years to bring the boilers to the proper efficiency level in preparation for the DOB test. Plaintiff testified that he was performing a test on boiler number four when the ladder shook and gave way, causing him to fall. When viewing the agreement between Approved Oil and Franklin, the scope of the entire job Approved Oil was engaged to perform, which was to prepare the boilers for the inspection, and which occurred every three years, plaintiff was performing maintenance and not a repair (see generally Fox v. H & M Hennes & Mauritz, L.P. , 38 AD3d 889, 922 N.Y.S.2d 139 [2 Dept., 2011] ).
Plaintiff here was engaged in an activity similar to that of plaintiff in Esposito v. New York City Indus. Dev. Agency , 1 NY3d 526, 770 N.Y.S.2d 682, 802 N.E.2d 1080 [2003], who was performing a monthly maintenance check on air conditioners located high off the ground. One unit appeared in need of repair, and plaintiff left and returned with tools and parts. As he climbed the ladder and began to remove the unit cover, the bottom of his ladder "kicked out" and he fell. We held that ‘[t]he work ... involved replacing components that require replacement in the course of normal wear and tear. It therefore constituted routine maintenance and not ‘repairing’ or any of the other enumerated activities’
( Abbatiello v. Lancaster Studio Assocs. , 3 NY3d 46, 781 N.Y.S.2d 477 [2004] ; see also Wein v. Amato Properties, LLC, 30 AD3d 506, 816 N.Y.S.2d 370 [2 Dept., 2006] [where plaintiff was replacing a defective safety valve on a boiler which constituted "routine maintenance" and not a repair within the meaning of Labor Law § 240(1) ]; Sobenis v. Harridge House Assocs. of 1984 , 111 AD3d 917, 976 N.Y.S.2d 113 [2 Dept., 2013] [where "plaintiff was performing annual servicing of the air conditioning system, done after the end of every cooling season, to ensure that the system continued to function effectively, and thus, that he was engaged merely in routine maintenance"]; Melski v. Fitzpatrick & Weller, Inc. , 107 AD3d 1447, 967 N.Y.S.2d 304 [4 Dept., 2013] [where plaintiff fell from a ladder when "performing work on a boiler at a hardwood lumber plant", and the Appellate Division, Fourth Department, found that "decedent's work involved replacing components that required replacement in the course of normal wear and tear, and thus that work did not involve repairing or any of the other activities enumerated in section 240(1)"] ).
In opposition, plaintiff failed to raise a question of fact. Plaintiff contends that defendant failed to establish that plaintiff was performing "maintenance" rather than "repair work" within the meaning of the statute. Plaintiff's own expert distinguished plaintiff's work from "repair work", when she stated that plaintiff "proceeded to inspect boiler # 4 and he began to perform tests on the breaching. This preliminary test is done to ascertain what repairs had to be performed on the boiler or if it was working properly" (Hopkins Affidavit at ¶ 8).
Further, to support his position, counsel provided plaintiff's affidavit sworn to on December 11, 2017. In his affidavit, plaintiff stated that he was dispatched to repair the boilers and that boilers three and five were not functioning or operating, and the seventh boiler was running on safety mode (Deangelis Affidavit at ¶¶ 1, 5, 6). However, this affidavit is dated approximately three years after plaintiff's deposition took place. None of the EBT testimony submitted, including plaintiff's own testimony, supports this assertion. According to defendants, plaintiff never submitted any changes to his EBT transcript pursuant to CPLR § 3116(b) (see Affirmation in Opposition and Reply [3] at ¶ 15). Based on the foregoing, "[t]he plaintiff's submissions in opposition merely raised what appear to be feigned issues of fact designed to avoid the consequences of the [plaintiff]'s deposition testimony and were insufficient to defeat the motion" ( Touloupis v. Sears , 155 AD3d 807, 63 N.Y.S.3d 518 [2 Dept., 2017], citing Bryant v. Loft Bookstore Caffe, LLC, 138 AD3d 664, 27 N.Y.S.3d 876 [2 Dept., 2016] ; see also Byrd v. Brooklyn 46 Realty, LLC. , 129 AD3d 882, 10 N.Y.S.3d 642 [2 Dept., 2015] ; Rivera v. J. Nazzaro Partnership, L.P. , 122 AD3d 826, 995 N.Y.S.2d 747 [2 Dept., 2014] ).
Plaintiff further contends that questions of fact exist as to whether plaintiff's work on the boilers falls within the enumerated activity of "altering". The Court of Appeals has held that "the term ‘altering’ in section 240(1) ‘requires making a significant physical change to the configuration or composition of the building or structure’ This definition excludes ‘routine maintenance’ and ‘decorative modifications’ Whether a physical change is significant depends on its effect on the physical structure" ( Saint v. Syracuse Supply Co. , 25 NY3d 117, 8 N.Y.S.3d 229 [2015], quoting Joblon v. Solow, 91 NY2d 457, supra ). "Conversely, an alteration ‘does not encompass simple, routine activities such as maintenance and decorative modifications’ " ( Sanatass v. Consol. Investing Co., 10 NY3d 333, 858 N.Y.S.2d 67 [2008], quoting Panek v. County of Albany, 99 NY2d 452, 758 N.Y.S.2d 267 [2003] ).
Plaintiff failed to raise a question of fact as to whether plaintiff was engaged in an alteration. As stated above, plaintiff was engaged in maintenance of the boilers. There is no evidence to support the idea that the work on the boilers would require making a "significant physical change to the configuration or composition of the building" (see Saint v. Syracuse Supply Co. , 25 NY3d 117, supra ). Plaintiff was not installing the boiler, he was merely working on existing boilers in the building (cf. Destefano v. City of New York , 39 AD3d 581, 835 N.Y.S.2d 275 [2 Dept., 2007] [where plaintiff's installation of a temporary boiler was considered alteration to the building] ). Even assuming, arguendo, that the boiler itself was considered to be a "structure" , there is no testimony to support the idea that plaintiff made "significant" physical changes to the boilers. Plaintiff performed tests and replaced component parts, if needed. The test holes in the boilers were made by welders, not by plaintiff.
"While the word ‘structure’ may cover a great variety of form and construction, yet, when used in connection with the words ‘house’ and ‘building,’ it is evidently intended to simply describe a variety of building [sic ]; and it would seem that it could not by any possibility be interpreted to mean a boiler which is portable, and may be readily moved from place to place as convenience in its use may require. Such a boiler rather becomes an appliance in the business for which it is used, and, on account of its portable character, can hardly be said to become so attached to premises as to constitute a part of the building or structure meant by the statute, and the recognized character of which is its permanency and immobility. But it is said that, inasmuch as the boiler was in use in connection with the plant, it therefore became in such use a part of the building—a quasi fixture—and that therefore its removal was an alteration of the building, and the scaffolding used in its removal would be a statutory scaffold" (Conley v. Lackawanna Iron & Steel Co. , 94 A.D. 149, 88 N.Y.S. 123 [4 Dept., 1904] ), aff'd , 183 NY 551, 76 N.E. 1092 [1905] ).
Based on the foregoing, defendant's motion for summary judgment dismissing plaintiff's claim pursuant to Labor Law § 240(1) is granted. Plaintiff's cross motion for summary judgment on Labor Law § 240(1), albeit late, is denied on the merits.
Labor Law § 241Defendant further moves for summary judgment as to plaintiff's Labor Law § 241(6) cause of action on the grounds that the Industrial Code provisions cited by the plaintiff are either too general to support a Labor Law § 241(6) claim, or not applicable to the facts of this case.
Labor Law § 241(6) provides, that,
All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith.
" Labor Law § 241(6) protects only those workers engaged in duties connected to the inherently hazardous work of construction, excavation, or demolition" ( Moreira v. Ponzo , 131 AD3d 1025, 16 N.Y.S.3d 813 [2 Dept., 2015], citing Nagel v. D & R Realty Corp., 99 NY2d 98, 752 N.Y.S.2d 581 [2002] ). "The legislative intent of section 241(6) is to ensure the safety of workers at construction sites" ( Morris v. Pavarini Const., 22 NY3d 668, 985 N.Y.S.2d 202 [2014], citing Nagel v. D & R Realty Corp., 99 NY2d 98, supra ). "[T]he protections of Labor Law § 241(6) do not apply to claims arising out of maintenance of a building or structure outside of the construction context" ( Nagel v. D & R Realty Corp. , 99 NY2d 98, supra ; see also Bedneau v. New York Hosp. Med. Ctr. of Queens , 43 AD3d 845, 841 N.Y.S.2d 689 [2 Dept., 2007] ).
" ‘[T]he courts have generally held that the scope of Labor Law § 241(6) is governed by 12 NYCRR 23–1.4(b)(13), which defines construction work expansively’ " ( Enos v. Werlatone, Inc. , 68 AD3d at 715, quoting Vernieri v. Empire Realty Co. , 219 AD2d 593, 595 ). Under that regulation, construction work consists of "[a]ll work of the types performed in the construction, erection, alteration, repair, maintenance, painting or moving of buildings or other structures" ( 12 NYCRR 23–1.4 [b][13] ).
( De Jesus v. Metro–N. Commuter R.R., 159 AD3d 951, ––– N.Y.S.3d –––– [2 Dept., 2018] ). "To establish liability under Labor Law § 241(6), a plaintiff or a claimant must demonstrate that his [or her] injuries were proximately caused by a violation of an Industrial Code provision that is applicable under the circumstances of the case" ( Rodriguez v. 250 Park Ave., LLC , ––– AD3d ––––, 2018 NY Slip Op. 03386 [2 Dept., 2018], quoting Aragona v. State of New York , 147 AD3d 808, 47 N.Y.S.3d 115 [2 Dept., 2017] ). "The predicate Industrial Code provision must ‘set[ ] forth specific safety standards’ " (Rodriguez v. 250 Park Ave., LLC , ––– AD3d ––––, supra , quoting Hricus v. Aurora Contrs., Inc. , 63 AD3d 1004, 883 N.Y.S.2d 61 [2 Dept., 2009] ).
In the instant case, in support of his claim, plaintiff alleges in his verified bill of particulars that defendants violated various Industrial Code sections including 12 NYCRR 23–1.5(a)–(c), 23–1.7(b), 23–1.8(c)(2), 23–1.16 (a–f), and 23–1.17. Defendants now seek to dismiss plaintiff's Labor Law § 241(6) claim because the Industrial Code sections relied upon do not support the cause of action because they are either too general or not applicable to the facts herein. This Court notes that in his opposition papers, plaintiff relies solely upon 12 NYCRR 23—1.16 (b). Thus, it appears that plaintiff has abandoned his claims with respect to the remaining alleged Industrial Code violations and OSHA violations (see Harsch v. City of New York , 78 AD3d 781, 910 N.Y.S.2d 540 [2 Dept., 2010], citing Musillo v. Marist Coll. , 306 AD2d 782, 762 N.Y.S.2d 663 [3 Dept., 2003] ; see also Palomeque v. Capital Improvement Services, LLC , 145 AD3d 912, 43 N.Y.S.3d 483 [2 Dept., 2016] ).
Here, plaintiff's Labor Law § 241(6) claim is predicated on "a violation of Industrial Code ( 12 NYCRR) § 23—1.16, which requires, in relevant part, that safety belts and harnesses be properly attached to a tail line or lifeline so that ‘if the user should fall such fall shall not exceed five feet’ " ( King v. Villette , 155 AD3d 619, 63 N.Y.S.3d 500 [2 Dept., 2017], citing 12 NYCRR 23—1.16 [b] ). "Whether a regulation applies to a particular condition or circumstance is a question of law for the court" ( Yaucan v. Hawthorne Vill., LLC , 155 AD3d 924, 63 N.Y.S.3d 721 [2 Dept., 2017], quoting Harrison v. State of New York, 88 AD3d 951, 931 N.Y.S.2d 662 [2 Dept., 2011] ). It is established that "Industrial Code ( 12 NYCRR) § 23—1.16(b) is ‘sufficiently specific to sustain a claim under Labor Law § 241(6) ’ " ( Yaucan v. Hawthorne Vill., LLC , 155 AD3d 924, supra , quoting Anderson v. MSG Holdings, L.P., 146 AD3d 401, 44 N.Y.S.3d 388 [1 Dept., 2017] ; see also King v. Villette , 155 AD3d 619, 63 N.Y.S.3d 500 [2 Dept., 2017] ).
The maintenance work performed here was not in the context of construction, excavation, or demolition, as required by Labor Law § 241(6) (see Wein v. Amato Properties, LLC , 30 AD3d 506, supra [where plaintiff replacing a defective safety valve on a boiler constituted routine maintenance and the Appellate Division, Second Department, determined with respect to Labor Law § 241(6), that the maintenance work was not related to construction, excavation or demolition] ). Furthermore, Industrial Code " 12 NYCRR 23—1.16, which sets standards for safety belts, is not applicable in this case because it is undisputed that the plaintiff was not provided with any safety belts" ( Clavijo v. Universal Baptist Church , 76 AD3d 990, 907 N.Y.S.2d 515 [2 Dept., 2010] ; see also Deangelis EBT at 66). In opposition, plaintiff failed to raise a triable issue of fact. Accordingly, Defendant's motion for summary judgment pursuant to Labor Law § 241(6) is granted.
Conclusion
Accordingly, the defendant's motion for summary judgment is granted to the extent that plaintiff's causes of action under Labor Law §§ 240(1) and 241(6) are dismissed. Defendant established that plaintiff was performing routine maintenance which is not an activity protected by Labor Law § 240(1). Plaintiff failed to raise a triable issue of fact as to whether plaintiff was performing a repair, or another enumerated activity under Labor Law § 240(1). Plaintiff's claim pursuant to Labor Law § 241(6) is not applicable to the facts of this case. Plaintiff's cross motion for summary judgment is denied, in its entirety. Anything not decided herein, is denied.
The foregoing constitutes the decision and order of this Court.