In an action to recover damages for personal injuries, plaintiff appeals from a judgment in favor of defendant, entered upon a dismissal of the complaint at the close of his ease. Plaintiff, an employee of the general contractor, was injured when he fell through an unguarded incinerator opening in the floor of the building being constructed for defendant, the owner. There was no proof whatever that the defendant retained any supervision or control over the construction. Defendant’s liability is predicated solely on a violation of the duty to plank over the floor, allegedly imposed on it by subdivision 4 of section 241 of the Labor Law. Judgment unanimously affirmed, with costs. The uncontradieted proof in the record establishes that work was in progress in and around the opening through which plaintiff fell, and that the work could not have been performed if the opening had been covered. Under those circumstances, we are of the opinion that the statute did not require such opening to be covered and that there was, consequently, no violation of the statutory duty to provide safeguards. (Cf. Ithaca Trust Co. v. Driscoll Bros. & Co., 169 App. Div. 377, affd. 220 N. Y. 617.) We therefore do not reach the question whether the provisions of section 241 are applicable to an owner who has retained no supervision or control over the construction. Present — Nolan, P. J., Wenzel, Beldock, Murphy and Ughetta, JJ.