Opinion
September 29, 1998
Appeal from the Supreme Court, New York County (Lorraine Miller, J.).
Plaintiff, who was allegedly injured while taking soil samples, has no cause of action under Labor Law § 240 Lab. (1) because elevation was not a factor in his injury ( Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509). Nor is Labor Law § 241 Lab. (6) applicable because plaintiff was not involved in excavation as defined by 12 NYCRR 23-1.4 (b) (19). Finally, there is no merit to plaintiff's argument that the IAS Court erred in entertaining successive motions for summary judgment. New materials, including deposition transcripts, obtained through discovery since the prior round of motion practice rendered the instant motions entirely appropriate ( see, Beagan v. Manhattanville Nursing Care Ctr., 176 A.D.2d 633, lv denied 79 N.Y.2d 753).
Concur — Milonas, J. P., Rosenberger, Ellerin, Wallach and Williams, JJ.