Opinion
May 31, 1996
Appeal from the Supreme Court, Oneida County, Shaheen, J.
Present — Green, J.P., Pine, Lawton, Balio and Boehm, JJ.
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 N.Y.2d 1108, 1109; Mordkofsky v. V.C.V. Dev. Corp., 76 N.Y.2d 573, 577). In addition, the court improvidently exercised its discretion in granting the cross motion for leave to amend the complaint. Industrial Code (12 N.Y.CRR) § 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 Hydro-Elec. Co., 81 N.Y.2d 494).