MUSCARELLA v. [And a Third-Party Action] (1999)

Supreme Court, Appellate Division, First Department, New York.

Carmine MUSCARELLA, Plaintiff-Appellant, v. HERBERT CONSTRUCTION COMPANY, INC., Defendant-Respondent. [And a Third-Party Action]

Decided: October 28, 1999

ELLERIN, P.J., NARDELLI, LERNER, ANDRIAS and FRIEDMAN, JJ.

Judy L. Brown, for Plaintiff-Appellant. Gloria L. Biscogno, for Defendant-Respondent.

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 regulations 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 A.D.2d 388, 389, 673 N.Y.S.2d 85, lv. denied 92 N.Y.2d 819, 685 N.Y.S.2d 421, 708 N.E.2d 178; see also, Lenard v. 1251 Americas Assocs., 241 A.D.2d 391, 392, 660 N.Y.S.2d 416).

MEMORANDUM DECISION.

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