The worker climbed into the cockpit of a compact track loader around 4:00 p.m. to prep it ahead of expected weather. He slipped on an icy step climbing out and fell about three feet. New York’s Appellate Division, Second Department decided on September 2 that this was not a Scaffold Law case.
The holding is narrow and the reasoning is the part worth reading. Labor Law 240(1) imposes strict liability for elevation-related risks, and the court found that descent from a machine step isn’t one. That claim now belongs in ordinary negligence, where the plaintiff has to prove something.
An OSHA standard is not a ticket to 241(6)
The second holding may matter more day to day. The court held a worker cannot predicate a Labor Law 241(6) claim on federal OSHA construction standards, dismissing predicates including 29 CFR part 1926 along with 12 NYCRR 23-1.5, 23-1.7 and 23-2.1 through 23-2.3.
It also held that equipment steps are not a “floor, passageway, walkway, scaffold, platform or other elevated working surface” under the Industrial Code’s slipping-hazard rule. A 241(6) claim needs a sufficiently specific Industrial Code provision, and a general federal standard isn’t a substitute. That changes what defense counsel actually has to rebut, and it narrows the set of citations a plaintiff can build a claim around.
One predicate survived: 12 NYCRR 23-1.30, the illumination rule, which requires a minimum of 10 foot-candles in any work area and 5 foot-candles in any passageway. Worth knowing which of these provisions is specific enough to carry a claim, because that one is.
The defense that died for want of paperwork
The owner didn’t escape. Its common-law negligence and Labor Law 200 exposure survived, and the reason is the most transferable thing in the opinion. The owner produced no climatological data, so it couldn’t invoke the storm-in-progress defense, and it couldn’t eliminate fact questions about notice of the ice.
That’s a records problem, not a legal one. A contractor who logs site weather conditions and the times of snow and ice removal is preserving a defense. A contractor who doesn’t is handing the plaintiff the notice question. This is a five-minute-a-day habit that decides seven-figure exposure, and the opinion is a clean illustration of what its absence costs.
Scope and caveats
The incident dates to February 2021 at a Brooklyn public school construction site; the appeal was from a September 5, 2024 order of Supreme Court, Kings County. A four-justice panel modified and otherwise affirmed, with costs to the defendants.
Two limits on how far to carry this. The opinion is uncorrected and subject to revision before publication in the official reports. And it binds the Second Department, which covers Brooklyn, Queens, Staten Island, Long Island and the lower Hudson Valley, not all of New York. A First Department job in Manhattan is not governed by it.
For risk managers on New York work, the practical output is three lines in a site policy: log the weather, log the removal, and stop assuming an OSHA citation decides a Labor Law claim. Manhattan conversion work carries the same exposure profile, as on projects like 111 Wall Street.
Source: the slip opinion, 2026 NY Slip Op 05162.