As we\u2019ve routinely covered, Labor Law \u00a7 241(6) causes of action require pleading of sufficiently specific New York State Industrial Code sections.\u00a0 However, in a recent decision the Appellate Division, First Department, gave us further clarification as to when<\/em> that sufficiently specific Industrial Code section needs to be plead \u2026and it is surprisingly late into the litigation.<\/p>\n In Marte v. Tishman Constr. Corp.<\/em>, 2024 NY Slip Op 000231 (1st<\/sup> Dep\u2019t 2024), plaintiff alleged he slipped on a rebar matt (metal that cris-crosses into a mesh pattern before being filled with concrete).\u00a0 Plaintiff\u2019s employer had been installing rebar and pouring concrete at the subject location.\u00a0 Defendants moved for summary judgment dismissing plaintiff\u2019s Labor Law \u00a7\u00a7 200, 240(1) and 241(6) claims.\u00a0 Plaintiff cross-moved as to liability on his Labor Law \u00a7 240(1) claims and for leave to amend the bill of particulars.\u00a0 The Supreme Court, New York County granted defendants\u2019 motion for summary judgment on the Labor Law \u00a7\u00a7 200 and 241(6) claims, and denied the defendants\u2019 motion for summary judgment as to \u00a7 240(1).\u00a0 As to plaintiff, the lower court denied his motion as to Labor Law \u00a7 240(1) and to amend the bill of particulars.[1]<\/a>\u00a0 The Appellate Division, First Department modified the lower court\u2019s order, denying defendants\u2019 motion as to Labor Law \u00a7 241(6), and granting plaintiff\u2019s leave to amend the bill of particulars to add a violation of Industrial Code \u00a7 23-1.22(c)(1).<\/p>\n In its decision, the First Department noted that defendants, with regard to plaintiff\u2019s \u00a7 241(6) claim, made a prima facie<\/em> 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.\u00a0 However, the First Department reasoned, that absent unfair surprise or prejudice, this failure is not necessarily fatal to a \u00a7 241(6) claim, and may be rectified by amendment, even where the note of issue[2]<\/a> has been filed.\u00a0 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.\u00a0<\/p>\n The First Department did reject two other proposed amendments, including the addition of Industrial Code \u00a7\u00a7 23-1.5(a) and 23-1.7(b)(1)(i) as they were \u201cpatently devoid of merit\u201d by being insufficiently specific for the purposes of maintaining a Labor Law \u00a7 241(6) claim and inapplicable to the factual circumstances, respectively.\u00a0<\/p>\n The Marte <\/em>decision can be found here.<\/a><\/p>\n For additional questions, please contact Michael J. Shields, Esq. and\/or Philip D. Priore, Esq.<\/p>\n This article was prepared by McCormick & Priore, P.C. to provide information on recent legal developments of interest to our readers.\u00a0 This publication is in no way intended to provide legal advice or to create an attorney-client relationship.\u00a0 All Rights Reserved.\u00a0 This article may not be reprinted without the express written permission of McCormick & Priore, P.C.<\/strong><\/p>\n