Opinion
May 4, 1992
Appeal from the Supreme Court, Nassau County (Morrison, J.).
Ordered that the appeal from the order entered February 28, 1990, is dismissed, without costs or disbursements, as that order was superseded by the order dated June 8, 1990, made upon reargument; and it is further
Ordered that the order dated June 8, 1990, is modified by adding thereto a provision vacating that portion of the order entered February 28, 1990, which required the plaintiff to authorize disclosure of Family Court records; as so modified, the order is affirmed insofar as reviewed, without costs or disbursements.
The plaintiff's decedent was allegedly drowned when a water main broke, flooding the trench in which he was working. We agree with the Supreme Court, Nassau County, that such an accident does not fall within the scope of Labor Law § 240 (1), as it concerned neither the hazard of working at an elevation nor of injury in the raising and lowering of material (see, Rocovich v Consolidated Edison Co., 78 N.Y.2d 509, 514; see also, Sandi v Chaucer Assocs., 170 A.D.2d 663, 664).
The Supreme Court erred, however, in ordering the plaintiff to produce Family Court records of a proceeding which determined that the deceased was the father of her child Selina. The Family Court's order, made during the father's lifetime, conclusively established the child's right to inherit as a distributee (EPTL 4-1.2 [a] [2] [A]), and for the purposes of EPTL article 4 it is not subject to collateral attack. The requisites for a wrongful death action have thus been met (EPTL 5-4.1; cf., Powe v. Wise, 70 A.D.2d 654). The proceedings leading up to this order are not material to any issue in this case and are not discoverable (see, Holmes v. DeVincenzo, 163 A.D.2d 594, 595). Mangano, P.J., Bracken, Pizzuto and Santucci, JJ., concur.