First Department Allows Mulligan on Industrial Code Pleadings for Labor Law § 241(6)
As we’ve routinely covered, Labor Law § 241(6) causes of action require pleading of sufficiently specific New York State Industrial Code sections. However, in a recent decision the Appellate Division, First Department, gave us further clarification as to when that sufficiently specific Industrial Code section needs to be plead …and it is surprisingly late into the litigation.
In Marte v. Tishman Constr. Corp., 2024 NY Slip Op 000231 (1st Dep’t 2024), plaintiff alleged he slipped on a rebar matt (metal that cris-crosses into a mesh pattern before being filled with concrete). Plaintiff’s employer had been installing rebar and pouring concrete at the subject location. Defendants moved for summary judgment dismissing plaintiff’s Labor Law §§ 200, 240(1) and 241(6) claims. Plaintiff cross-moved as to liability on his Labor Law § 240(1) claims and for leave to amend the bill of particulars. The Supreme Court, New York County granted defendants’ motion for summary judgment on the Labor Law §§ 200 and 241(6) claims, and denied the defendants’ motion for summary judgment as to § 240(1). As to plaintiff, the lower court denied his motion as to Labor Law § 240(1) and to amend the bill of particulars.[1] The Appellate Division, First Department modified the lower court’s order, denying defendants’ motion as to Labor Law § 241(6), and granting plaintiff’s leave to amend the bill of particulars to add a violation of Industrial Code § 23-1.22(c)(1).
In its decision, the First Department noted that defendants, with regard to plaintiff’s § 241(6) claim, made a prima facie showing of entitlement to summary judgment because plaintiff did not cite any Industrial Code provision that allegedly was violated here in his complaint or bill of particulars. However, the First Department reasoned, that absent unfair surprise or prejudice, this failure is not necessarily fatal to a § 241(6) claim, and may be rectified by amendment, even where the note of issue[2] has been filed. The belated identification of this section entails no new factual allegations, raises no new theories of liability, and results in no prejudice to the defendant, and the lower court therefore should have permitted the amendment.
The First Department did reject two other proposed amendments, including the addition of Industrial Code §§ 23-1.5(a) and 23-1.7(b)(1)(i) as they were “patently devoid of merit” by being insufficiently specific for the purposes of maintaining a Labor Law § 241(6) claim and inapplicable to the factual circumstances, respectively.
The Marte decision can be found here.
For additional questions, please contact Michael J. Shields, Esq. and/or Philip D. Priore, Esq.
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[1] The bill of particulars, though technically not a discovery device, is unique to New York practice and can include a list of questions from one party to another asking for further details about a claim or defense. Industrial Code sections, for the purposes of Labor Law § 241(6), are routinely plead in the bill of particulars. Its purpose, generally speaking, is to amplify a pleading.
[2] In New York, the Note of Issue signals the conclusion of discovery and that the case is ready to be placed on the trial calendar.
