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

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

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