Trends In New York Construction Law


Down the Rabbit Hole: New York State Labor Law Meets Alice in Wonderland

AliceRecent decisions coming out of both the First and Second Department Appellate Divisions of New York State continue to differ on the issue of whether partially falling into a hole implicates the protections of New York State Labor Law §240. The First Department hears appeals in cases brought in New York and Bronx Counties while the Second Department presides over appeals from cases filed in, among others, Westchester, Nassau, Kings, Suffolk and Rockland Counties and there appears to be quite a distinction in these Departments on this issue.

In Brown v. 44 Street Development, LLC, 137 A.D.3d 703 (1st Dep’t. 2016), plaintiff was carrying lumber when he slipped and fell approximately 12-18 inches through an opening in a latticework rebar deck to the plywood form below. The First Department decided, in March of 2016, that Labor Law §240 was implicated and held “there is no bright-line minimum height differential that determines whether an elevation hazard exists and here, the record establishes that plaintiff’s fall was the result of exposure to an elevation related hazard.”  The First Department affirmed, among other things, the Supreme Court’s grant of plaintiff’s motion for partial summary judgment on the issue of liability under Labor Law §240.

However, while addressing a very similar set of circumstances, the Second Department held differently in Vitale v. Astoria Energy II, LLC, 138 A.D.3d 981 (2nd Dep’t. 2016). Vitale, which was decided in April of 2016, involved a surveyor who, in order to complete his work, had to walk across the top of a rebar grid which was comprised of 12” by 12” square openings. As he walked across the rebar grid, his leg fell through one of the square openings of the rebar grid, up to his groin. The Second Department did not believe that Labor Law §240 was implicated and affirmed the Supreme Court’s grant of summary judgment to the defendants dismissing the Labor Law §240 claim. It found that “the openings of the grid, were not of a dimension that would have permitted the plaintiff’s body to completely fall through and land on the floor below [and] did not present an elevation-relation hazard to which the protective devices enumerated in Labor Law 240(1) are designed to apply.”

The Second Department has typically considered the specific dimensions and sizes of an opening to determine whether the plaintiff’s body could completely fall through to another level when determining whether there was an elevation-related hazard. In Avila v. Plaza Construction Corp., 73 A.D.3d 670 (2nd Dep’t. 2010), similar to the above mentioned fact patterns, Plaintiff’s leg fell three feet into a rebar grid that was laid on top of a dirt floor in a grid like pattern each measuring one square foot. The Second Department held that the dimensions of the openings of the grid were “clearly not of a dimension that would have permitted the plaintiff’s body to fall through and land on the dirt floor below” thus, not implicating Labor Law §240.  The Second Department has consistently issued decisions with a similar analysis and reiterated the same analysis recently in Vitale, supra.

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Dawn Foster

Dawn Foster is a partner working in the Insurance Defense practice group. Ms. Foster focuses her practice in areas including construction litigation and complex premises liability issues. If you have any questions regarding these issues, please contact Dawn at (914) 686-4800 or via e-mail at