Opinion
February 16, 2000
Appeal from Order of Supreme Court, Erie County, Burns, J. — Summary Judgment.
PRESENT: GREEN, A. P. J., HAYES, WISNER AND BALIO, JJ.
Order unanimously affirmed without costs.
Memorandum:
Supreme Court properly denied the motion of third-party, CIR Electrical Construction Corp. (CIR), for summary dismissing the third-party complaint of defendant-third-party, 149 Edison Street, Inc., d/b/a Lonestar Construction Edison). Plaintiff, an employee of CIR, was injured when he fell in a trench that was covered with a tarp and further obscured by snow. While CIR and 149 Edison submitted proof that they did not create the condition that led to plaintiff's injuries, issues of fact remain concerning the active fault of CIR in the supervision of plaintiff ( see, Golda v. Hutchinson Enters., 247 A.D.2d 863).
The court also properly denied the motion of 149 Edison for summary judgment dismissing the Labor Law § 241 (6) claim. We agree with the court that the regulation relied on by plaintiff, 12 NYCRR 23-1.7 (b) (1), "provides specific standards regarding the placement of a substantial cover or safety railing to guard hazardous openings" ( Riley v. Stickl Constr. Co., 242 A.D.2d 936). We further conclude that the regulation applies to the facts of this case and reject CIR's contention that the regulation is limited to cases involving openings five feet or greater. Appellate Division of the Supreme Court of the State of New York Fourth Department February 16, 2000