Agree to Disagree

First Dept. Stands with Third and Fourth Depts. On § 4.2(k)

It’s common knowledge that the Appellate Departments don’t agree on everything, and those disagreements extend to the Labor Law.? You’ll recall that claims under Labor Law § 241(6) must be predicated on a violation of New York’s Industrial Code.? Those Industrial Code sections can, generally, be classified into two categories: (1) sufficiently specific to support a § 241(6) cause of action and (2) insufficiently specific to support a § 241(6) cause of action.? There is a vast body of case law sorting the Industrial Code sections into one of these two categories, and where they land is mostly well-settled.?

If the four Appellate Departments of New York disagree on how sufficiently specific an Industrial Code section is, the Court of Appeal settles the disagreement.? In the case of 12 N.Y.C.R.R. § 23-4.2(k) the dispute among the Appellate Departments has yet to be settled.? The First, Third and Fourth Departments hold that § 4.2(k) is insufficiently specific to support a § 241(6) cause of action, with the Second Department contending § 4.2(k) is sufficiently specific.? In a recent decision, the First Department highlighted the continuing disagreement between the parties, and refused to adopt the Second Department’s view on § 4.2(k).

In Mann v. Mezuyon, LLC, 2024 NY Slip Op 01764 (1st Dep’t 2024), plaintiff alleges that he was injured while working as a drill blaster at an excavation site when he was struck by an excavator machine and asserted Labor Law § 241(6) claims predicated on violation of Industrial Code § 23-4.2(k).? The section states “[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.”?

In a brief decision, the court cited to its previous precedent, holding that “[t]his Court has previously held that Industrial Code § 23-4.2(k) is insufficiently specific to support a Labor Law § 241(6) claim.”? It further stated that the First Department “decline[s] to adopt the Second Department’s view as set forth in Garcia v. Silver Oak USA (298 A.D.2d 555 [2nd Dep’t 2002])” and highlighted that the First, Third and Fourth Departments stand in agreement on the issue.?

We’ll keep our ears to the ground for a case to reach the Court of Appeals resolving the dispute between the Appellate Departments, but in the interim, as to this particular Industrial Code section, the Appellate Divisions agree to disagree.

The Mann decision can be found here.

For additional information, contact Phil Priore and/or Michael J. Shields, Esq. .

This article was prepared by McCormick & Priore, P.C. to provide information on recent legal developments of interest to our readers.? This publication is in no way intended to provide legal advice or to create an attorney-client relationship.? All Rights Reserved. This article may not be reprinted without the express written permission of McCormick & Priore, P.C.

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