PORAZZO v. CITY OF NEW YORK (2007)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Solomon, J.), dated January 18, 2006, as granted that branch of the defendants' motion which was for summary judgment dismissing the cause of action based on an alleged violation of Labor Law § 241(6).

ORDERED that the order is affirmed insofar as appealed from, with costs.

In response to the defendants' prima facie demonstration of their entitlement to judgment as a matter of law, the plaintiffs failed to submit evidence sufficient to raise a triable issue of fact.   Contrary to the plaintiffs' contention, the open, ground level of the work site where the injured plaintiff fell did not constitute a passageway, walkway, or other elevated working surface contemplated by 12 NYCRR 23-1.7(d) (see Roberts v. Worth Constr., Inc., 21 A.D.3d 1074, 1077, 802 N.Y.S.2d 177;  Morra v. White, 276 A.D.2d 536, 714 N.Y.S.2d 510;  Lawyer v. Hoffman, 275 A.D.2d 541, 542, 711 N.Y.S.2d 618;  Constantino v. Kreisler Borg Florman Gen. Constr. Co., 272 A.D.2d 361, 707 N.Y.S.2d 487).

The appellants' remaining contention is without merit.