Traditionally, Industrial Code §23-4.2(k) occupied a familiar place in New York construction litigation. Plaintiffs routinely invoked the provision in excavation accident cases, arguing that owners and contractors could be held liable under Labor Law §241(6) when workers were exposed to the hazards posed by heavy excavation equipment.
In Mann v. Mezuyon, LLC, 2026 N.Y. Slip Op 03257 (May 26, 2026), the New York Court of Appeals resolved a split among Appellate Divisions, holding that §23-4.2(k) is too general to serve as a predicate Industrial Code violation because it identifies a danger without prescribing any specific means of avoiding it.
The decision is significant not only for excavation cases, but also for what it reveals about the court's continuing effort to police the boundary between actionable Industrial Code mandates and provisions that merely restate broad workplace safety principles.
The Accident
The case arose from an excavation project in Manhattan involving drilling and blasting operations. The site owner, Mezuyon, LLC, retained Mayrich Construction Corp. to perform excavation work that required drilling into bedrock and detonating explosives.
Plaintiff William Mann worked as a driller for Mayrich. On the day of the accident, several drilling rigs and excavators were operating simultaneously. After Mann's drilling machine malfunctioned, he summoned a mechanic. During the inspection, an excavator swung close to the drilling rig. The mechanic suggested moving to a safer area, and Mann relocated the machine 20 to 30 feet away. While Mann was lowering the drill head, the rear corner of a nearby excavator allegedly rotated into him, knocking him to the ground and causing injury.
Mann commenced suit against the property owner asserting claims under Labor Law §§ 200, 240(1), and 241(6), as well as common law negligence. During the litigation, plaintiff amended the bill of particulars to rely on Industrial Code §23-4.2(k), which provides that "persons shall not be suffered or permitted to work in any area where they may be struck or endangered by any excavation equipment."
Although most of Mann's claims were dismissed, the Labor Law §241(6) claim based on Industrial Code §23-4.2(k) ultimately reached the Court of Appeals.
The Legal Framework
Labor Law §241(6) occupies a unique place within New York's construction accident jurisprudence. The court has repeatedly characterized the statute as a hybrid provision. Its first sentence reflects the common law obligation to provide a reasonable protection and safety at construction sites. The second sentence authorizes the Commissioner of Labor to promulgate regulations and imposes a nondelegable duty on owners and contractors to comply with those regulations. Bazdaric v. Almah Partners LLC, 41 N.Y.3d 310, 317 (2024).
Specifically, Labor Law §241(6) provides: "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, except owners of one- and two-family dwellings who contract for but do not direct or control the work, shall comply therewith."
As the court explained in Ross v. Curtis-Palmer-Hydro-Electric Co., 81 N.Y.2d 494 (1993), liability under §241(6) may be predicated only upon violations of Industrial Code provisions containing "specific, positive commands." General safety standards are insufficient because allowing broad regulatory language to trigger vicarious liability would effectively circumvent the limitations imposed by Labor Law §200 and common law negligence principles.
Subsequent decisions have reinforced that distinction. "The Industrial Code should be sensibly interpreted and applied to effectuate its purpose of protecting construction laborers against hazards in the workplace." St. Louis v. Town of N. Elba, 16 N.Y.3d 411, 416 (2011). Some of the holdings the court in the current action utilized in their decision-making held as follows:
- "In assessing whether a regulation is specific enough to support a Labor Law §241(6) claim, we examine the text without reference to the underlying facts." Toussaint, 38 N.Y.3d at 95
- "General regulatory criteria in the form of words like 'adequate', 'designated', 'competent', 'effective', 'good', 'proper', 'safe', 'sufficient', and 'trained' are not sufficient to give rise to a triable claim for damages under Labor Law §241(6). Ross, 81 NY2d at 502.
- "Administrative regulations are generally subject to the same interpretative rules and canons of construction as statutes." Cruz v. BanksY.3d_, 2026 NY Slip Op 00821 (2026).
Looking at this precedent, the court found that the Industrial Code should not be treated any differently in this case. The court has consistently held that only provisions requiring compliance with concrete specifications can support a §241(6) claim.
Examining 23-4.2(k) of the Industrial Code
Writing for the majority, Judge Troutman concluded that §23-4.2(k) fails to satisfy the specificity requirement necessary to support a Labor Law §241(6) claim.
The court emphasized that a qualifying Industrial Code provision must do more than identify a hazard. It must also prescribe a specific method of addressing that hazard. In the court's view, §23-4.2(k) identifies a safety concern- the danger posed by excavation equipment- but does not direct owners, contractors, or employers to take any particular action to eliminate or reduce that danger.
- 23-4.2(k) does not establish minimum separation distances between workers and equipment. It does not define prohibited zones. It does not require barriers, spotters, warning devices, communication protocols, or any other protective measures. Instead, it broadly states that workers should not be permitted to work in areas where they may be struck or endangered by excavation equipment.
According to the court, terms such as "area" and "endangered" are inherently general and provide no objective benchmark for compliance. As a result, §23-4.2(k) offers little more than a broad prohibition against unsafe conditions.
The court found §23-4.2(k) even less specific than the Industrial Code provision rejected in Toussaint. There, the court held that requiring operation of a power buggy by a "trained and competent operator designated by the employer" was not sufficiently specific because it articulated only a general standard of conduct. If the provision in Toussaint failed to satisfy §241(6), the court reasoned, §23-4.2(k) necessarily falls short because it contains no concrete directive at all.
The court concluded §23-4.2(k) merely restates the general common law obligation to provide a safe workplace and therefore cannot serve as a basis for the nondelegable liability imposed by Labor Law §241(6).
Important Takeaways
Mann reaches well beyond the facts of a single excavation accident. The decision offers several important lessons for construction litigators and risk professionals:
- Industrial Code provisions must do more than identify a hazard. To support a Labor Law §241(6) claim, a provision must prescribe a concrete course of conduct, not simply prohibit unsafe conditions.
- General safety language remains vulnerable to dismissal. Courts are likely to continue scrutinizing Industrial Code predicates for terms that lack objective standards or measurable requirements.
- The decision resolves longstanding departmental split. While the Second Department had previously recognized §23-4.2(k) as sufficiently specific, the First, Third, and Fourth Departments reached the opposite conclusion. The Court of Appeals has now settled the issue statewide.
- Excavation-related claims will require alternative predicate provisions. Plaintiffs can no longer rely on §23-4.2(k) as a standalone basis for Labor Law §241(6).
Significance of the Case
The significance of Mann lies in not what the court said about excavation equipment, but in what it said about Labor Law §241(6) itself. The court reaffirmed that statutory liability cannot be built on broad aspirations of workplace safety. Instead, liability must rest on provisions that tell owners, contractors, and employers exactly what they must do, or refrain from doing, to protect workers.
By holding that §23-4.2(k) lacks that level of specificity, the court removed a frequently cited industrial code provision from the Labor Law §241(6) arsenal and provided additional guidance for evaluating countless other provisions that occupy the gray area between concrete commands and general safety principles. Construction litigators would be well served to view Mann not as an excavation case, but as the latest chapter in the court's ongoing effort to define the limits of nondelegable liability under new York's Labor Law.
This article originally appeared on Wood Smith Henning & Berman LLP. www.wshblaw.com
About the Author:
D. Bradford Sessa is senior counsel at Wood Smith Henning & Berman LLP. dbsessa@wshblaw.com