Radka v. Miller Brewing, Inc. ( 1992 )

Order affirmed without costs. Memorandum: We affirm for reasons stated at Supreme Court (Falvey, J.). We add only that, as plaintiff testified at his examination before trial, he was walking alongside a trench when its bank gave way and he was precipitated down the steep slope into the excavation. Thus, at the time of the incident, plaintiff was not performing any task at an elevated worksite and was not exposed to the type of hazard that the use or placement of the safety devices enumerated in Labor Law § 240 (1) was designed to protect against (see, Rocovich v Consolidated Edison Co., 78 NY2d 509, 513-514; see also, Staples v Town of Amherst, 146 AD2d 292, 296 [holding that the statute benefits " 'only those persons injured by a fall from an elevated height due to a lack of, or defective, safety devices designed to prevent such a fall’ ”]).

All concur, except Callahan, J. P., and Davis, J., who dissent in part and vote to modify in the following Memorandum.