Although I join in the Court’s decision, plaintiffs Labor Law § 241 (6) claim predicated on 12 NYCRR 23-4.2 (h) requires additional discussion. This provision of the Industrial Code prescribes safeguards that should be taken in connection with an “open excavation.” The two cuts created by the asphalt-cutting saw are not “open excavation[s]” within the meaning of this provision. Although these cuts initially were some four inches wide and eight inches deep, it appears that the two cuts (described by the Court both as “cuts” and “trenches”) were only some two inches deep at the time of the accident because the dirt displaced by the saw blade had been pushed back by broom into the cuts.
In any event, it makes no sense to consider the “trenches” as “open excavation [s]” regardless of whether they were two inches or eight inches deep. To construe any slight depression, created preparatory to additional digging, as itself an “open excavation” trivializes the obvious goal of section 23-4.2 (h)—to prevent injuries when persons or objects fall from grade level into excavated areas. Moreover, it nonsensically would require the erection of barricades or covering planking for the initial depressions as well as the ultimate “open excavation.” Other absurdities are apparent. For example, any potential liability under section 23-4.2 (h) could be avoided for a one inch deep and one inch wide “open excavation” by covering the depression with “planking at least two inches thick full size” (§ 23-4.2 *391[h] [“In lieu of . . . guarding, protection may be afforded by a substantial covering installed over (the) excavation. Such covering shall consist of planking at least two inches thick full size, properly supported exterior grade plywood at least three-quarters inch thick or material of equivalent strength.”]).
The Court correctly recognizes that the saw cuts are not “open excavation[s]” within the meaning of the Industrial Code. Although the Court also notes that the 12-inch area between the saw cuts “had not yet been excavated” at the time of the accident, I do not understand the Court’s use of the word “excavated” to suggest that section 23-4.2 (h) would be applicable if the area between the saw cuts had been dug out. The undisputed evidence before the motion court established that the 12-inch-wide strip was to have been dug out to a depth of 18 inches. Whether a depression 18 inches deep might under some circumstances be such an “open excavation” is an issue that is not before this Court.