Keskeny v 409 E. 87, LLC

[*1] Keskeny v 409 E. 87, LLC 2005 NY Slip Op 52007(U) [10 Misc 3d 1057(A)] Decided on October 19, 2005 Supreme Court, New York County Heitler, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 19, 2005
Supreme Court, New York County

ILONA KESKENY, Plaintiff,

against

409 EAST 87, LLC, MADISON HOTEL PARTNERS, LLC, DOES 1-10, HMS PROPERTIES, INC., EZ RUNER CONSTRUCTION CORP., and DUO COLONY FUEL s/h/a COLONY FUEL OIL CO., INC., Defendants.



116755/03

Sherry Klein Heitler, J.

Third-party defendant EZ Runer Construction Corp. ("EZ Runer") moves, pursuant to CPLR 3212, for an order granting summary judgment dismissing the complaint. Defendants 409 E. 87, LLC, Madison Hotel Partners, LLC, and HMS Properties, Inc. (collectively, Owner) and Duo Colony Fuel Company (Colony) cross-move for summary judgment.

Plaintiff Ilona Keskeny brought this action to recover for personal injuries allegedly sustained in an accident occurring on November 23, 2001 at premises known as 409 East 87th Street, New York, New York. Plaintiff alleges that the defendants were negligent in allowing a drain hole for the building's boiler to remain uncovered; in failing to secure the drain hole properly; and in removing the grating or other drain cover. Moreover, plaintiff alleges that the defendants were negligent in leaving materials on the floor of the boiler room, and in failing to install a pipe on the boiler drain valve to the floor drain.

Prior to the accident, Owner had engaged Colony to install a new boiler. In addition, Owner had engaged EZ Runer to perform renovation and maintenance work. According to Owner, EZ Runer [*2]performed many duties normally performed by a building superintendent.

Plaintiff's husband Andras Keskeny (who is now deceased) had been employed by the prior owner as a part-time superintendent, at a salary of approximately $175 per month. After acquiring the property, the Owner continued this arrangement.

At her deposition, plaintiff explained that on occasion, when her husband was ill, she took over his duties. Her son and grandson also assisted her on occasion. On this particular day, plaintiff, accompanied by her grandson, went to the basement in order to drain the boiler. She noticed some items on the floor, but did not move them before working with the boiler. She turned the boiler valve, which released water. Unfortunately, instead of standing behind the faucet so that water would flow away from her, she stood between the faucet and the drain. As the water came out, she stepped back into a drain hole. Her foot became stuck and the water, which was hot, came into contact with her foot, causing burns. Her grandson managed to turn off the faucet before further injuries occurred. According to plaintiff, the drain cover was not in place on the day of the accident, nor was it in place two months before, when she had gone to the basement so that her son could show her how to drain the boiler.

James Bealon, who was deposed on behalf of EZ Runer, stated that he had been in the boiler room several times before the accident. On one occasion, he turned the boiler off and on so that radiators could be replaced in two apartments. On another occasion, he removed some pipe left by Colony after the installation of the boiler. Bealon claimed that he never handled the drain cover or noticed that it was removed.

According to the Owner, Mr. Keskeny's duties as superintendent were generally limited to cleaning and taking out the garbage, and that any work in connection with the boiler room was supposed to be handled by EZ Runer. However, Mr. Steven Ruffin, a property manager who was deposed on behalf of the Owner, acknowledged that whatever Mr. Keskeny's duties were, they were sometimes performed by other members of the Keskeny family, including plaintiff. The Owner contends that its personnel were not aware that the Keskenys had a key to the boiler room, and that it relied on EZ Runer (whose personnel had a key) for boiler maintenance.

Leonard Weiss, a professional engineer, who submits an affidavit on behalf of the Owner, states that, since the boiler was new, and did not have a build-up of sediment, there was no need to drain it, so that plaintiff should not have been in the boiler room in the first place. Plaintiff admits that no one from the Owner ever told her to drain the boiler.

According to plaintiff's deposition, she saw pieces of wood pipe, cement bags and various types of material around the drain. She positioned herself between the open end of the discharge pipe and the drain. On the other hand, plaintiff's grandson rescued her by approaching the value handle from behind it and was able to turn off the water without being burned himself.

The Weiss affidavit indicates that one should properly keep to the side and behind the valve handle with one's hand always on the handle in order to control the water flow at all times. Moreover, Weiss states, one should remove any debris on the floor as it is a tripping hazard and may re-direct the water flow from the drain.

Michael Granieri, a boiler technician for Colony, testified that the mud leg did not require weekly draining, that a new boiler needed draining infrequently, that customers were told not to drain [*3]the boiler but to let Colony perform that operation, and that the boiler was compliant with the building code.

Plaintiff contends that this court cannot entertain Colony's cross-motion, because it was not made within 60 days after the filing of the note of issue. The cross-motion was made past the 60-day point but prior to the 120-day point. CPLR 3212(a) states that, unless the court sets an earlier time, summary judgment motions must be made within 120 days after the filing of a note of issue. That time period is strictly enforced, unless good cause is shown (Brill v City of New York, 2 NY3d 648 [2004]). In New York County, Local Rule 17 requires that summary judgment motions be made within 60 days after the filing of the note of issue. Some judges have been strictly enforcing that rule (see, e.g., Buckner v City of New York, NOR, 800 NYS2d 333 {9 Misc 3d 510} [Sup Ct, NY County 2005]). This court, on the other hand, does not find that the failure to comply with the 60-day rule is an absolute bar to the consideration of summary judgment motions. However, for reasons explained below, even assuming that the cross-motion is timely, it must be denied on the merits.

Summary judgment should be denied if there is any doubt as to the existence of a triable issue (Kolivas v Kirchoff, 14 AD3d 493 [2d Dept 2005]). The role of the court on such a motion is issue finding, rather than issue determination (Sillman v Twentieth Century Fox Film Corp., 3 NY2d 395 [1957]).

The Owner contends that plaintiff was an employee, and that Workers' Compensation constitutes her exclusive remedy. However, there is no evidence that the Owner paid a salary to any member of the Keskeny family other than Mr. Keskeny. In Mojica v Ulrim Realty Corp. (N.O.R., 193 NYS2d 424 [Sup Ct, NY County 1959]), the superintendent's wife sought to recover damages for personal injuries which she sustained while helping her husband move a sofa. In that case, at the time of his hiring, the husband was specifically informed that his wife was to assist him with his duties. Mojica is not binding on this court, and in any event, is distinguishable, because in the instant case, there is no evidence of any express agreement that Mrs. Keskeny was to be an employee. In light of the above, this court holds that plaintiff's action against the Owner is not barred by the Workers' Compensation laws.

In order to be liable, the Owner must have had actual or constructive notice of the condition. To constitute constructive notice, the condition must be visible and apparent, and must have existed for a sufficient period of time for the Owner to have discovered the condition (Lee v Bethel First Pentacostal Church of America, Inc., 304 AD2d 798 [2d Dept 2003]).

The Owner alleges that the defective condition, if any, existed by reason of commissions or omissions on the part of either of two independent contractors, Colony or EZ Runer. In Beckiel v Citibank, N.A., 299 AD2d 504 [2d Dept 2002]), the court stated the general rule that a party who retains an independent contractor is not liable for the negligence of the independent contractor because it has no right to supervise or control the work. However, an exception to the rule exists when the owner has a non-delegable duty to keep the premises safe. Where, for example the premises is open to the public, the owner has a non-delegable duty to provide the public with a reasonably safe premises. The duty may not be delegated by the owner to an independent contractor. The duty extends to anyone who comes onto the premises for reasonably foreseeable purposes. Although the parties dispute whether the Owner knew that Mr. Keskeny was likely to be in the boiler [*4]room, the Owner did know that whatever the superintendent's duties were, they were sometimes performed by Mrs. Keskeny. Thus, there is a triable issue as to whether it was foreseeable that Mrs. Keskeny might be present in the boiler room. In light of the above, Owner's cross-motion for summary judgment must be denied.

EZ Runer regularly performed renovation and maintenance work in the building, and its personnel had access to the boiler room. Colony installed the boiler in October 2001, and Granieri, who inspected the boiler some time between the installation date and the date of the accident, admitted, in his testimony, that he could not recall whether a drain cover was in place.

The mere fact that the boiler and accompanying drain (according to Colony) complied with the building code does not preclude a finding of common law negligence (Washington v Albany Housing Auth., 297 AD2d 426 [3d Dept 2001]). If it is determined that the absence of a drain cover constitutes negligence and that such negligence was the proximate cause of the accident, then either Colony or EZ Runer, or both, could be held responsibility for that omission. Moreover, this court cannot determine as a matter of law whether Colony or EZ Runer left debris near the boiler. Thus, neither Colony nor EZ Runer is entitled to summary judgment.

Accordingly, it is

ORDERED that the motion and cross-motions are denied.

DATED: OCTOBER 19, 2005

SHERRY KLEIN HEITLER

J.S.C.