The Queens County trial court's decision in Bailey v. Beechwood Arverne LLC, that was published earlier today in the New York Law Journal has dual significance:

(1) it serves as a valuable reminder to construction site owners as to the cost of failing to reduce your agreements - or understandings - to writing (see also, "Why One Queens Building Owner Deserved to Lose His Breach of Contract & Indemnity Claim"); and,

(2) the Court held as a matter of New York law that Labor Law §241(6) applies to construction site accident cases where the plaintiff was injured by a moving excavator.

With regard to the latter point, and as discussed generally in our earlier post, "How to Prove a Construction Site Accident Case in New York," the Court here set forth more specifically how a plaintiff can prove a viable NY Labor Law §241(6) claim:

"Labor Law §241(6) imposes a nondelegable duty upon owners and contractors to provide necessary equipment to maintain a safe working environment, provided there is a specific statutory violation causing plaintiff's injury (see, Toefer v. Long Island R.R., 4 NY3d 399 [2005]); Bland v. Manocherian, 66 NY2d 452 [1985]; Kollmer v. Slater Electric, Inc., 122 AD2d 117 [2d Dept 1986]). The Court of Appeals has held that the standard of liability under this section requires that the regulation alleged to have been breached be a 'specific positive command' rather than a 'reiteration of common law standards which would merely incorporate into the State Industrial Code a general duty of care. (Rizzuto v. LA Wenger Contracting, 91 NY2d 343 [NY 1998])."

In light of this case law, it should be fairly obvious why the number of successful New York construction site accident cases is dwindling: there are not that many cases where the safety statutes are specifically on point.
Jonathan Cooper
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Non-Compete, Trade Secret and School Negligence Lawyer
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