Muscarella v. Herbert Construction Co.

Oct 28, 1999
Versions:265 A.D.2d 264
697 N.Y.S.2d 35
1999 N.Y. App. Div. LEXIS 10884

—Order, Supreme Court, New York County (Lorraine Miller, J.), entered July 29, 1998, which, insofar as appealed from, granted defendant’s motion for summary judgment dismissing plaintiff’s cause of action under Labor Law § 241 (6), unanimously affirmed, without costs.

Industrial Code (12 NYCRR) § 23-1.7 (e) (1) and (2) were correctly held to be inapplicable to plaintiff’s claim, which alleges an injury sustained while walking from the job site to a construction trailer as a result of tripping over the ledge of a metal grate that surrounded a tree two feet away from the temporary steps of the trailer. This open area did not constitute the sort of passageway, floor, platform, or similar working surface contemplated by the cited regulations (see, Jennings v Lefcon Partnership, 250 AD2d 388, 389, lv denied 92 NY2d 819; see also, Lenard v 1251 Ams. Assocs., 241 AD2d 391, 392). Concur — Ellerin, P. J., Nardelli, Lerner, Andrias and Friedman, JJ.