In a recent decision The Fourth Department reversed a Supreme Court Order, holding that Industrial Code provision 12 NYCRR § 23-4.2(k) is not sufficiently specific to support a Labor Law § 241(6) cause of action.
We note, Labor Law § 241(6) claims are required to be predicated on a violation of a sufficiently specific provision of The Industrial Code.
In Vicki v. City of Niagara Falls, 215 A.D.3d 1285, 189 N.Y.S 3d 332 (4th Dep’t 2023), plaintiff was injured while working on a sewer replacement project pursuant to a contract executed between his employer and a municipal water board. Plaintiff brought an action against the board, the water authority, and a utility, asserting claims sounding in common-law negligence and, inter alia, violation of Labor Law § 241(6). Plaintiff’s Labor Law § 241(6) claim was predicated on a violation of Industrial Codes, including 12 NYCRR § 23-4.2(k).
The Fourth Department reiterated its prior decisions with respect to 12 NYCRR § 23-4.2(k) and its reluctance to adopt Second Department precedent:
We agree with defendants, however, that the court erred in denying the moving defendants’ motion with respect to the Labor Law § 241(6) claim against [defendant] insofar as it was based on the alleged violation of 12 NYCRR 23-4.2(k). We have repeatedly held that 12 NYCRR 23-4.2(k) is not sufficiently specific to support a Labor Law § 241(6) claim (see Malvestuto v. Town of Lancaster, 201 A.D.3d 1339, 1341, 163 N.Y.S.3d 340 (4th Dep’t 2022); Vanderwall v. 1255 Portland Ave. LLC, 128 A.D.3d 1446, 1447, 8 N.Y.S.3d 760 (4th Dep’t 2015); Buhr v. Concord Sq. Homes Assoc., Inc., 126 A.D.3d 1533, 1534, 6 N.Y.S.3d 868 (4th Dep’t 2015). Inasmuch as the First and Third Departments have held similarly (see Willis v. Plaza Constr. Corp., 151 A.D.3d 568, 568, 54 N.Y.S.3d 281 (1st Dep’t 2017); Kropp v. Town of Shandaken, 91 A.D.3d 1087, 1091, 937 N.Y.S.2d 345 (3d Dep’t 2012), we decline to adopt contrary precedent in the Second Department (see Zaino v. Rogers, 153 A.D.3d 763, 765, 59 N.Y.S.3d 770 (2d Dep’t 2017); Cunha v. Crossroads II, 131 A.D.3d 440, 441, 15 N.Y.S.3d 153 (2d Dep’t 2015); Ferreira v. City of New York, 85 A.D.3d 1103, 1105, 927 N.Y.S.2d 100 (2d Dep’t 2011).
The Court of Appeals has yet to consider this question and resolve the split between the First, Third, and Fourth Departments and the Second Department.
The Vicki decision can be found here.
For additional questions, please contact Michael J. Shields and/or Philip D. Priore.
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