A prerequisite to prevailing on a Labor Law § 241(6) claim is showing a violation of an Industrial Code regulation containing “concrete specifications” applicable to the alleged facts. Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 505 (1993). Until recently, there has been a split within the Appellate Division of the Supreme Court of the State of New York as to whether 12 NYCRR § 23-4.2(k) was sufficiently specific to serve as a basis for vicarious liability to sustain a Labor Law § 241(6) claim. The First, Third, and Fourth Departments(1) consistently held 12 NYCRR 23-4.2(k) was not sufficiently specific to support a Labor Law § 241(6) claim while the Second Department(2) consistently held 12 NYCRR § 23-4.2(k) was sufficiently specific. In May 2026, however, the New York Court of Appeals resolved this split by determining the language in § 23-4.2(k) contains “broad” safety concerns and thus does not contain the requisite specificity to sustain a Labor Law § 241(6) claim. Mann v. Mezuyon, LLC. 2026 WL 1462931, 2026 N.Y. Slip. Op. 03257 (May 26, 2026).
Under 12 NYCRR § 23-4.2(k), “[p]ersons shall not be suffered or permitted to work in any area where they may be struck or endangered by any excavation equipment or by any material being dislodged or falling from such equipment.” The Mann Court held that while 12 NYCRR § 23-4.2 clearly identifies a safety concern (dangers resulting from being struck by excavation equipment), does not sufficiently provide direction for any owner, employer or contractor to take any particular action to reduce the danger.(3)
For illustration purposes, the Mann Court compares 12 NYCRR § 23-4.2(k) with the “sufficiently specific” 12 NYCRR § 23-1.7(d). In pertinent part, 12 NYCRR § 23-1.7(d) unequivocally directs employers not to “suffer or permit any employee” to use a slippery floor or walkway, and also imposes an affirmative duty on employers to provide safe footing by requiring that any “foreign substance which may cause slippery footing shall be removed.” Rizzuto v. L.A. Wenger Contr. Co., 91 N.Y.2d 343 (1998). Unlike 12 NYCRR § 23-1.7(d), the Mann Court reasoned, 12 NYCRR § 23-4.2(k) “does not identify any protective measures or reasonable precautions that a site owner must take in order to comply with the section,” nor does it direct how owners or contractors are to provide reasonable protection and safety to those working in excavation areas.
What this Means for Defending Plaintiffs’ Labor Law §241(6) Claims?
The specific facts of Mann are relatively insignificant, but the importance of the New York Court of Appeals’ ruling cannot be overstated. There are several things to note for those practicing in the Labor Law defense area.
First, if you currently have a Labor Law § 241(6) case pending where a summary judgment was granted on the basis of 12 NYCRR § 23-4.2(k), or if an issue of fact was found pursuant to the Appellate Division split, you should immediately consider making a motion to renew under CPLR 2221(e) based on a change in the law that would alter the prior determination. This is particularly important in the Second Department, which previously held a violation of 12 NYCRR § 23-4.2(k) was sufficient to sustain a Labor Law § 241(6) claim.
Second, in any cases involving excavation-related injuries, plaintiffs must now show violations of another Industrial Code provision to maintain their Labor Law § 241(6) claims. This may prove to be more difficult given several of the other Industrial Code provisions lack the requisite specificity as now required by the New York Court of Appeals for excavation-related activities.
Finally, and more broadly, this ruling provides insight that courts will continue to scrutinize the sufficiency of Industrial Code provisions to provide the basis for granting a plaintiff’s Labor Law § 241(6) claim. To be sufficient, Industrial Codes must not reference general safety concerns, without providing direction as to how owners and contractors are to eliminate or reduce those concerns.
Going forward, all defense counsel should keep Mann in mind while making motions related to plaintiff’s Labor Law § 241(6) claims premised on violations of broad Industrial Code provisions, as it is likely the Court’s Mann reasoning will be applied to other generic Industrial Code provisions. Thus, defendants should use Mann’s two-part framework when assessing the sufficiency of a plaintiff’s Labor Law §241(6) claim by answering the following questions: 1) is there a workplace danger identified and 2) is there concrete means indicated by which that danger must be addressed. If the answer to either question is a no, then plaintiff’s Labor Law §241(6) claim cannot be sustained based on a violation of that particular Industrial Code provision.
Harris Beach Murtha’s Medical and Life Sciences Industry Team regularly tracks legal matters to assist in defending clients. If you need assistance with defense of similar matters, please reach out to attorney Kelly Jones Howell at (212) 912-3652 and khowell@harrisbeachmurtha.com; attorney David J. Dino at (212) 313-5484 and ddino@harrisbeachmurtha.com; attorney Megan R. Pollastro at (212) 313-5445 and mpollastro@harrisbeachmurtha.com; or the Harris Beach Murtha attorney with whom you most frequently work.
This alert is not a substitute for advice of counsel on specific legal issues.
Harris Beach Murtha’s lawyers and consultants practice from offices throughout Connecticut in Bantam, Hartford, New Haven and Stamford; New York State in Albany, Binghamton, Buffalo, Ithaca, New York City, Niagara Falls, Rochester, Saratoga Springs, Syracuse, Long Island and White Plains; as well as in Boston, Massachusetts, and Newark, New Jersey.
[1] Vicki v. City of Niagara Falls, 215 A.D.3d 1285, 1289 (4th Dep’t 2023); Mohamed v. City of Watervliet, 106 A.D.3d 1244, 1247 (3d Dep’t 2013); Sparendam v. Lehr Constr. Corp., 24 A.D.3d 388, 389 (1st Dep’t 2005).
[2] Zaino v. Rogers, 153 A.D.3d 763, 765 (2d Dep’t 2017)
[3] Mann v. Mezuyon, LLC, 2026 WL 1462931, 2026 N.Y. Slip Op. 03257 (May 26, 2026)