While working in an office space under renovation, plaintiff, an electrician, fell after stepping into a hand-hole, an approximately 12-inch wide and 8-inch deep opening used by electricians to provide access to wiring and ducts embedded in floors. Deposition testimony established that when hand-holes are not in use, they are covered by metal plates secured with screws and that on a construction site, electricians are ordinarily the only workers that open and re-cover them.
Plaintiff's trip and fall was not caused by defendants-respondents' failure to provide or erect necessary safety devices in response to "elevation-related hazards," and, accordingly, the protections of Labor Law 240(1) do not apply (see, Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 500, 501 and Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 513-514 and compare Carpio v. Tishman Constr. Corp. of N.Y., 240 A.D.2d 234, 235.
Even if the bill of particulars had been amended as plaintiff proposed, dismissal of plaintiff's Labor Law § 241(6) claim would still have been required. Plaintiff's accident was not caused by the type of hazardous opening for which defendants would have been required to provide a cover or safety railing pursuant to the cited sections of the Industrial Code (see, 12 NYCRR 23-1.7 [b][1][i], [ii]).
Since the record evidence demonstrates that Dorff, the general contractor that subcontracted with plaintiff's employer, did not exercise control and supervision over plaintiff or the worksite during the approximately two weeks plaintiff worked there, the court's grant of summary judgment, dismissing the Labor Law § 200 claim as against Dorff was proper.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.