Farrell v. Dick Enterprises, Inc.

May 31, 1996
Versions:227 A.D.2d 956
643 N.Y.S.2d 852
1996 N.Y. App. Div. LEXIS 6884

Order insofar as appealed from unanimously reversed on the law without costs, motions granted, complaint dismissed and cross motion denied. Memorandum: Dana Farrell (plaintiff) was injured when he stepped into a hole in the ground that had been dug during the installation of a security fence at the Mid-State Correctional Facility. At the time, plaintiff was escorting a vehicle onto a construction site in the performance of his duties as a correction officer; he was not a worker employed to carry out a construction task, nor was he lawfully frequenting the premises within the meaning of Labor Law § 241 (6) and 12 NYCRR 23-1.3 and 23-1.4 (b) (39). Thus, Supreme Court erred in denying that part of the motions of defendant and third-party defendant for summary judgment dismissing the Labor Law § 241 (6) cause of action (see, Gibson v Worthington Div., 78 NY2d 1108, 1109; Mordkofsky v V.C.V. Dev. Corp., 76 NY2d 573, 577). In addition, the court improvidently exercised its discretion in granting the cross motion for leave to amend the complaint. Industrial Code (12 NYCRR) § 23-1.7 (b), relied upon by plaintiff to support his Labor Law § 241 (6) cause of action, does not apply to this case (see, Ross v Curtis-Palmer HydroElec. Co., 81 NY2d 494). (Appeals from Order of Supreme Court, Oneida County, Shaheen, J. — Summary Judgment.) Present— Green, J. P., Pine, Lawton, Balio and Boehm, JJ.