Fielding v. Environmental Resources Management Group

Order, Supreme Court, New York County (Lorraine Miller, J.), entered on or about January 24, 1996, which, inter alia, granted the motions of defendants and third-party defendant for summary judgment dismissing the complaint, and order, same court and Justice, entered April 4, 1996, which, to the extent appealable, denied plaintiffs motion to renew and adhered to the court’s original January 24, 1996 determination, unanimously affirmed, without costs. Plaintiff, who was allegedly injured while taking soil samples, has no cause of action under Labor Law § 240 (1) because elevation was not a factor in his injury (Rocovich v Consolidated Edison Co., 78 NY2d 509). Nor is Labor Law § 241 (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 AD2d 633, lv denied 79 NY2d 753). Concur — Milonas, J. P., Rosenberger, Ellerin, Wallach and Williams, JJ.