Court of Appeals resolves Appellate Division split and explains when a statute is “sufficiently specific” in order to establish vicarious liability under New York’s Labor Law

Author: Andrew Stewart, Esq.

Last week, the Court of Appeals decided whether the statutory language of Industrial Code Section 23-4.2(k) was “sufficiently specific” to impose vicarious liability against a construction site owner under Labor Law § 241(6). See Mann v. Mezuyon, LLC, et al., 2026 WL 1462931, 2026 N.Y. Slip. Op. 03257 (N.Y. May 26, 2026). Prior to this decision, there was a split in the Appellate Division—the Second Circuit had determined Section 23-4.2(k) was sufficiently specific, whereas the First, Third, and Fourth Circuit had held that it was not sufficiently specific. See id at *3 (citing Vicki v. City of Niagara Falls, 215 A.D.3d 1285, 1289 (4th Dept. 2023); Mohamed v. City of Watervliet, 106 A.D.3d 1244, 1247 (3d Dept. 2013); Sparendam v. Lehr Constr. Corp., 24 A.D.3d 388, 389 (1st Dept. 2005); and Zaino v. Rogers, 153 A.D.3d 763, 765 (2d Dept. 2017)). Against this split, the Court of Appeals determined that the language of the applicable section merely contained “broad” safety concerns. Therefore, because the statutory language did not also contain the requisite “specific, positive command” to address the safety concern, the Court held that the Section 23-4.2(k) was not “sufficiently specific” to create a nondelegable duty and thus hold the site owner vicarious liable under the Labor Law.

The Mann case begins at a construction site in Manhattan. The construction site was owned by Mezuyon, LLC. Another company, Mayrich Construction Corporation, was hired to perform excavation work at the site. On the day of the accident, Mr. Mann, an employee of Mayrich, was operating a drill blaster when it malfunctioned. He called for a mechanic to come and inspect the it. While the two men were trying to repair the drill blaster, a nearby excavator on the site moved its boom, which struck Mr. Mann and knocked him to the ground. Mr. Mann sued Mezuyon for his injuries, alleging the site owner violated Industrial Code Section 23-4.2(k).

The two laws at issue were Industrial Code Section 23-4.2(k) and Labor Law § 241(6). Under Section 23-4.2(k) of the Industrial Code, “[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.” 12 NYCRR § 23-4.2(k).  Section 241(6) of the Labor Law, in turn, states as follows:

All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work . . . shall comply therewith.

Labor Law § 241(6).

While at first glance it seems that Mr. Mann’s accident (i.e., getting struck by an excavator in the middle of an active construction area) falls squarely within the referenced Code provisions, the Court of Appeals held that the language of Section 23-4.2(k) was not “sufficiently specific” to support a Labor Law cause of action. Mann, 2026 WL 1462931 at 3. In reaching this conclusion, the Court emphasized that Section 23-4.2(k) “fails to state any action, whatsoever, required to address the safety concerns set forth in the provision.” Id. at 4 (emphasis added). The Court explained that other statutes which are “sufficiently specific,” by contrast, contain language that both addresses a safety concern and states a specific command to address the safety concern at issue. For illustration, the Court referenced Industrial Code Section 23-1.7(d), a regulation which is “sufficiently specific,” observing that Section 23-1.7(d) prohibits employers from permitting employees to work on a slippery surface and requires employers to remove any slippery substances or debris from such surfaces. Id. at 3 (quoting Rizzuto v. L.A. Wenger Constr. Co., 91 N.Y.2d 343, 350-51 (1998). Against this standard, the Court observed that Section 23-4.2(k) “does not identify any protective measures or reasonable precautions that a site owner must take in order to comply with the section.” Id. at 4. “Nor does [S]ection 23-4.2(k) provide clear guidance about how owners and contractors should provide reasonable and adequate protection and safety for workers.” Id. In other words, the plain language of Section 23-4.2(k) merely states a general concern for the safety of those working in excavation areas without providing any further directive or command to ensure their safety. Thus, the Court of Appeals concluded that Section 23-4.2(k) was not “sufficiently specific” to hold the site owner, Mezuyon, LLC, vicariously liable under the Labor Law.

If you are an owner, general contractor, or subcontractor seeking general guidance on the application of the Labor Law or who has been sued following a worker’s project-related injury, the construction attorneys at Carr Maloney P.C. are here to help.