In Burkoski v. Structure Tone, Inc (40 AD3d 378, 836 N.Y.S.2d 130), the plaintiff tripped on a "four foot high stack of tiles of the kind that were then in the process of being installed on the floor of the room where the incident occurred" (id. at 383 ). The Burkoski court dismissed plaintiff's claim which was based upon a violation of Industrial Code 12 NYCRR 23-1.7 (e) (2), finding that the stack of tiles that the plaintiff tripped over was material being used at the time of the accident by the floor contractor installing them in the room where the accident occurred (id.).