Muscarella v. Herbert Construction Co.

Appellate Division of the Supreme Court of New York

Muscarella v. Herbert Construction Co.

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

Appellate Division of the Supreme Court of the State of New York·Decided October 28, 1999·Published·Cited by 6 cases

Opinion

—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.

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—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.

Muscarella v. Herbert Construction Co., 265 A.D.2d 264, 697 N.Y.S.2d 35, 1999 N.Y. App. Div. LEXIS 10884 (N.Y. Ct. App. 1999).

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265 A.D.2d 264 (Muscarella v. Herbert Construction Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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