Recitation, as required by CPLR §2219(a), of the papers considered in the review of this motion:Papers NumberedNotice of Motion/Cross Motion/Order to Show Cause and Affidavits (Affirmations) Annexed 1, 2Opposing Affidavits (Affirmations) 3Reply Affidavits (Affirmations) 4Other Papers:DECISION & ORDERIntroductionUpon 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 HistoryThis 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).1Defendant 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).2 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.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).3 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 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 AffidavitPlaintiff 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 at3). 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. at5). 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. at6). 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. at7).Expert AffidavitPlaintiff 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 at1). 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. at10). “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” (id. at8). In the process of this test, plaintiff fell from an “unsecured 18 foot aluminum extension ladder” (id. at9).Ms. Hopkins further opines that defendants failed to provide a safe worksite that was equipped with adequate protection for the plaintiff (see id. at11, 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. at11, 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. at12-13).Plaintiff ContendsPlaintiff 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] at4). 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. at8). 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. at28). “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], at6).Defendants ContendDefendants 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] at56). 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. at59).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] at28). 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. at35). 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
