The Appellate Division, First Department, recently reaffirmed a doctrine that often gets lost in the shuffle. In Murillo v Downtown NYC Owner, LLC, 2025 NY Slip Op 05574, the Appellate Division affirmed the dismissal of the plaintiff's Labor Law Section 241(6) and Labor Law Section 200 claims. The plaintiff was allegedly injured when he tripped and fell on debris in a hallway while he was pushing a cart of debris. In so doing, the court appears to have come into conflict with recent Court of Appeals case law. 

The plaintiff's employer was the sole entity contracted for debris and material removal. The plaintiff was injured while performing this work. While the debris was allegedly left by another contractor (not the plaintiff's employer), the court concluded that, nonetheless, the plaintiff could not recover. 

An injured party cannot recover from injuries caused by the very hazard or condition they were retained to remedy.  

An interesting aspect of the decision, but not covered by the decision itself, is the interplay between the holding here and the Court of Appeals' holding in Bazdaric v. Almah Partners LLC, 41 NY3d 310, 320 (2024), clarifying the integral to the work defense. In Bazdaric, the court held:

"The doctrine thus recognizes that certain work assignments are, by their nature, dangerous but still permissible, and the particular commands of the Industrial Code may not apply if they would make it impossible to conduct the work…[t]he doctrine does not, as the Appellate Division majority mistakenly concluded, absolve a defendant of liability for the use of an avoidable dangerous condition or for failure to mitigate the danger, including as specifically provided by the Industrial Code, if preventive measures would not make it impossible to complete the work."

So, the question is, can a worker still recover under the Labor Law when they are injured by the very hazard or condition they were tasked with remedying, when there is an avoidable hazard or condition that could have been mitigated, including when the Industrial Code specifically provides for such mitigation? 

For example, if a worker is tasked with removing a damaged floor, and the floor collapses while he is in the middle of that floor removal, he is injured, and the evidence shows that shoring or bracing (as required by the Industrial Code) would have prevented the floor collapse, can the worker recover? Under the Court of Appeals' reasoning in Bazdaric, the answer would seem to be yes. But under the First Department's reasoning in Murillo, recovery would appear to be impossible under the Labor Law. 

It is possible that the plaintiff will seek leave to appeal to the Court of Appeals to take up the case. If that leave is granted, the issue may be clarified further. If not, then the apparent conflict between the two decisions would remain. In either case, the issue is likely to be litigated further. Stay tuned…