By Jessica Price

New York Labor Law remains an uphill battle for the defense as the Court limits the integral to work defense under Labor Law 241(6). The lower courts were recently more inclined to deny plaintiff summary judgment as to Labor Law 241(6) based on a violation of Industrial Code Section 12 NYCRR 23-1.7 (d) based on the integral to the work defense, but in its February 20, 2024 Court of Appeals Decision in Bazdaric v. Almah Partners LLC, 2024 N.Y. LEXIS 71, the Court overturned the lower courts’ denial of plaintiff’s summary judgment motion as to Labor Law 241(6), finding that the integral to the work defense was inapplicable as to Industrial Code 12 NYCRR 23-1.7 (d).  

In Bazdaric, plaintiff, a painter, slipped and fell on a plastic covering that was placed over an escalator, which he had to stand on so he could paint.  When plaintiff stood on the plastic, he slipped and fell due to the plastic covering.  The lower courts held that the plastic covering was integral to the work and denied plaintiff summary judgment as to Labor Law 241(6) pursuant to 12 NYCRR 23-1.7 (d).  Plaintiff argued that drop cloths would have been appropriate.

In the Court of Appeals Decision, the majority held that plaintiff established that the covering was a slipping hazard that defendants failed to remove in violation of Industrial Code 12 NYCRR 23-1.7 (d), rendering defendants liable under Labor Law § 241 (6). The Court heled that “additionally, contrary to the Appellate Division's conclusion, the plastic covering was not integral to the paint job but was created by use of a nonessential and inherently slippery plastic that caused plaintiff employee's injuries.” 

As always with Labor Law, the Court of Appeal’s Decision is heavily reliant on the deposition testimony of the parties.  The Court sites to plaintiff’s deposition testimony wherein he testified that he complained about the use of the plastic, which was unsecured.  Further, the general contractor’s superintendent also testified that the plastic was the wrong type of covering for the escalator and that often wood would be used instead.  The Court was unmoved by an affidavit from a foreman stating that plaintiff had placed and used the plastic covering himself, even though canvas drop cloths were available.  The majority opinion finds that the plastic covering was not part of the escalator and therefore was a foreign substance under 12 NYCRR 23-1.7 (d).  

The concurring opinion of Justice Garcia notes that the majority fails to focus on 23-1.7(d)’s requirement that a foreign substance caused the slippery condition. “The Court invoked the principle of ejusdem generis to conclude that the plastic sheeting was not a foreign substance because it "is not similar in nature to the foreign substances listed in the regulation, i.e., ice, snow, water or grease." This dicta may be useful in distinguishing cases in motion practice as the Court’s conclusory finding that the plastic covering was a foreign substance is devoid of any reference to snow, water or grease. 

This Decision only further emphasizes the need for thorough questioning during depositions to obtain all facts that could sway the Court.