We agree that 12 NYCRR 23-4.2 (k) and 23-9.2 (b) do not contain specific and concrete standards sufficient to support a Labor Law § 241 (6) cause of action and that the issue whether 12 NYCRR 23-9.2 *1052(a) is sufficiently specific to support such a cause of action is not properly before us. We dissent, however, because the requirement of 12 NYCRR 23-9.5 (c) that the blade or dipper bucket rest on the ground or grade when the backhoe is not in use does not apply. The uncontroverted proof shows that the backhoe was in use at the time of the accident. Frederick Webber (plaintiff) stated in his affidavit that the backhoe machine "was driven” over the back of his leg and that the machine operator "drove” the backhoe machine over his leg and foot. Further, we conclude that any violation of section 23-9.5 (c) was not a proximate cause of the accident. Thus, we would grant summary judgment dismissing the Labor Law § 241 (6) cause of action.
We reject the contention that the backhoe was not in use while the workers were raking the blacktop. The operator remained in the backhoe with the engine running. The regulations do not require that the bucket be lowered to the ground every time the backhoe momentarily stops during a construction task. We likewise reject the contention that, had the operator lowered the bucket while waiting for the workers to rake the blacktop, the workers would have been alerted to any forward movement of the backhoe by the revving of the engine when the operator raised the bucket, and thus, that the failure to lower the bucket was a proximate cause of the accident. Plaintiffs presented no evidence that the requirements of section 23-9.5 (c) are designed to provide a warning to workers concerning forward movement of the backhoe. Further, the contention that a revving engine necessarily would warn workers that the backhoe is moving forward is pure speculation; an operator might , rev an engine for any number of reasons. (Appeals from Order of Supreme Court, Chautauqua County, Ger-ace, J.—Labor Law.) Present—Denman, P. J., Lawton, Wesley, Balio and Davis, JJ.