Misicki v. Caradonna, 12 N.Y.3d 511 (2009)

To support a claim under Labor Law § 241(6), a regulation must mandate compliance with concrete specifications, not simply declare general safety standards; specifically, 12 NYCRR 23-9.2(a) can support a claim if an employer, after receiving notice of a defect in power-operated equipment, fails to correct it.

Summary

Igor Misicki sued 430-50 Shore Road Corporation for injuries sustained while using an angle grinder without a safety handle. He claimed violations of Labor Law § 241(6), alleging violations of specific Industrial Code provisions. The trial court initially dismissed the claim, then reversed its decision after reargument. The Appellate Division reversed, holding that the cited regulation, 12 NYCRR 23-9.2(a), established only general safety standards. The Court of Appeals reversed, holding that the third sentence of the regulation, requiring repair or replacement of unsafe equipment upon discovery of a defect, was sufficiently specific to support a § 241(6) claim when the employer had notice of the defect.

Facts

Igor Misicki, a laborer, was injured while working on a construction project. He was using an angle grinder to cut concrete when the tool “kicked back” and injured his face. The grinder was missing its side handle, which Misicki claims he reported to his foreman, who instructed him to continue working without it. Misicki testified he did not feel safe using the grinder without the handle.

Procedural History

Misicki sued Shore and the architect, alleging negligence and Labor Law violations. He later withdrew his § 200 and § 240(1) claims and discontinued the action against the architect. Shore then moved for summary judgment to dismiss the remaining § 241(6) claim, which was initially granted, then denied upon reargument. The Appellate Division reversed, dismissing Misicki’s § 241(6) claim. The Court of Appeals granted leave to appeal due to a conflict among the Appellate Divisions and reversed the Appellate Division’s order.

Issue(s)

Whether 12 NYCRR 23-9.2(a) is sufficiently specific to support a claim under Labor Law § 241(6) where an employee alleges injury due to a known, unremedied defect in power-operated equipment.

Holding

Yes, because the third sentence of 12 NYCRR 23-9.2(a), which imposes an affirmative duty to correct defects in equipment upon discovery, mandates a distinct standard of conduct and is sufficiently specific to support a claim under Labor Law § 241(6) when the employer has notice of the defect.

Court’s Reasoning

The Court of Appeals analyzed the specificity of 12 NYCRR 23-9.2(a) in light of Labor Law § 241(6), which requires compliance with concrete safety specifications. The Court distinguished between general safety standards and specific, positive commands. While the first two sentences of § 23-9.2(a) were deemed too general, the third sentence, requiring correction of structural defects or unsafe conditions upon discovery, was considered sufficiently specific. The Court reasoned that this provision mandates a distinct standard of conduct, imposing an affirmative duty on employers to address known defects. The court cited Rizzuto v. L.A. Wenger Contracting Co., 91 N.Y.2d 343, 351 (1998), noting that the third sentence of 23-9.2(a) “mandates a distinct standard of conduct, rather than a general reiteration of common-law principles, and is precisely the type of ‘concrete specification’ that Ross requires.” The court emphasized that the employee must demonstrate the employer had actual notice of the defect. The court also rejected an argument raised by the dissent that the regulation was inapplicable to hand tools because that argument was not properly preserved in the lower courts and was raised for the first time on appeal. Judge Smith, dissenting, argued that the inapplicability of the regulation was a point of law that the court should consider despite it not being preserved. Judge Graffeo, in a separate dissent, argued that 23-9.2(a) was a general safety standard similar to the one deemed insufficiently specific in Morris v. Pavarini Constr., 9 N.Y.3d 47 (2007), and that the fact that the employer had notice of the defect should not change that analysis.