It\u2019s common knowledge that the Appellate Departments don\u2019t agree on everything, and those disagreements extend to the Labor Law.\u00a0 You\u2019ll recall that claims under Labor Law \u00a7 241(6) must be predicated on a violation of New York\u2019s Industrial Code.\u00a0 Those Industrial Code sections can, generally, be classified into two categories: (1) sufficiently specific to support a \u00a7 241(6) cause of action and (2) insufficiently specific to support a \u00a7 241(6) cause of action.\u00a0 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.\u00a0<\/p>\n
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.\u00a0 In the case of 12 N.Y.C.R.R. \u00a7 23-4.2(k) the dispute among the Appellate Departments has yet to be settled.\u00a0 The First, Third and Fourth Departments hold that \u00a7 4.2(k) is insufficiently specific to support a \u00a7 241(6) cause of action, with the Second Department contending \u00a7 4.2(k) is sufficiently specific.\u00a0 In a recent decision, the First Department highlighted the continuing disagreement between the parties, and refused to adopt the Second Department\u2019s view on \u00a7 4.2(k).<\/p>\n
In Mann v. Mezuyon, LLC<\/em>, 2024 NY Slip Op 01764 (1st<\/sup> Dep\u2019t 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 \u00a7 241(6) claims predicated on violation of Industrial Code \u00a7 23-4.2(k).\u00a0 The section states \u201c[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.\u201d\u00a0<\/p>\n In a brief decision, the court cited to its previous precedent, holding that \u201c[t]his Court has previously held that Industrial Code \u00a7 23-4.2(k) is insufficiently specific to support a Labor Law \u00a7 241(6) claim.\u201d\u00a0 It further stated that the First Department \u201cdecline[s] to adopt the Second Department\u2019s view as set forth in Garcia v. Silver Oak USA (298 A.D.2d 555 [2nd<\/sup> Dep\u2019t 2002])<\/em>\u201d and highlighted that the First, Third and Fourth Departments stand in agreement on the issue.\u00a0<\/p>\n We\u2019ll 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.<\/p>\n