Farrell v. Dick Enterprises, Inc. ( 1996 )

Order insofar as appealed from unanimously reversed on the law without costs, motions granted, complaint dismissed and cross motion denied. Memorandum: Dana Farrell (plaintiff) was injured when he stepped into a hole in the ground that had been dug during the installation of a security fence at the Mid-State Correctional Facility. At the time, plaintiff was escorting a vehicle onto a construction site in the performance of his duties as a correction officer; he was not a worker employed to carry out a construction task, nor was he lawfully frequenting the premises within the meaning of Labor Law § 241 (6) and 12 NYCRR 23-1.3 and 23-1.4 (b) (39). Thus, Supreme Court erred in denying that part of the motions of defendant and third-party defendant for summary judgment dismissing the Labor Law § 241 (6) cause of action (see, Gibson v Worthington Div., 78 NY2d 1108, 1109; Mordkofsky v V.C.V. Dev. Corp., 76 NY2d 573, 577). In addition, the court improvidently exercised its discretion in granting the cross motion for leave to amend the complaint. Industrial Code (12 NYCRR) § 23-1.7 (b), relied upon by plaintiff to support his Labor Law § 241 (6) cause of action, does not apply to this case (see, Ross v Curtis-Palmer HydroElec. Co., 81 NY2d 494). (Appeals from Order of Supreme Court, Oneida County, Shaheen, J. — Summary Judgment.) Present— Green, J. P., Pine, Lawton, Balio and Boehm, JJ.