
    Dennis Smith et al., Appellants, v County of Monroe et al., Respondents.
    [645 NYS2d 258]
   —Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court erred in granting summary judgment dismissing the Labor Law § 241 (6) causes of action in their entirety. Defendants did not seek that relief in their cross motions. Moreover, the function of a court in reviewing a summary judgment motion is "[ijssuefinding, rather than issue-determination” (Esteve v Abad, 271 App Div 725, 727). Here, factual issues at least arguably exist concerning the applicability of certain Industrial Code provisions (12 NYCRR 23-1.7 [b], [e]; 23-1.23, 23-4.3) to this construction site accident.

We agree with the court, however, that 12 NYCRR 23-4.2 (i) does not support the Labor Law § 241 (6) causes of action. That regulation requires the guarding of all open sides of excavation "[w]here no work is being performed in an unattended open excavation which has substantially vertical sides or banks three feet or more in depth”. The record shows that plaintiff Dennis Smith was injured when he fell while walking down the side of an anchor trench. Plaintiff testified at his deposition that he was injured "next to where the welder was welding the seam of the liner”. Thus, the accident did not occur in an unattended open excavation where no work was being performed. Furthermore, the record shows that the anchor trench had only one vertical side that may have been more than three feet in height.

We therefore modify the order by granting the cross motion of defendants for summary judgment dismissing the Labor Law § 241 (6) causes of action to the extent that those causes of actions are based on 12 NYCRR 23-4.2 (i). (Appeal from Order of Supreme Court, Monroe County, Sir acuse, J.—Summary Judgment.) Present—Pine, J. P., Lawton, Wesley, Balio and Davis, JJ.  