Introduction

This commentary analyzes the Second Department’s decision in Santos v. Leeward Living, LLC, an important Labor Law case addressing two recurring questions: (1) when a cooperative housing corporation qualifies as an “owner” under Labor Law §§ 240(1) and 241(6), and (2) which Industrial Code provisions properly predicate liability under § 241(6) when no safety devices were furnished.

Jose Santos, a worker scraping and disposing of excess insulation in the attic of a house under construction within Breezy Point Cooperative, allegedly fell through an uncovered hole in the attic floor. He sued the general contractor, Leeward Living, LLC, and Breezy Point Cooperative, Inc. (the fee owner of the land), asserting violations of Labor Law §§ 240(1) (the Scaffold Law) and 241(6). The Supreme Court granted Santos summary judgment on liability under both statutes, relying on specific Industrial Code predicates. The defendants appealed.

The Appellate Division affirmed in large part, but modified to narrow the § 241(6) basis of liability. The ruling clarifies how co-op structures and proprietary leases create a sufficient nexus to establish “owner” status, and it refines which Industrial Code sections apply when no safety equipment is provided at all.

Summary of the Judgment

• Owner status and homeowners’ exemption: Breezy Point, as the fee owner within a cooperative housing structure, is an “owner” for purposes of §§ 240(1) and 241(6). The court held there was a sufficient nexus between Breezy Point and the work based on proprietary leases and the co-op’s approval/inspection framework. Breezy Point is not entitled to the homeowners’ exemption.
• Labor Law § 240(1): Summary judgment for the plaintiff affirmed. The uncovered, unguarded attic opening was an elevation-related hazard; no safety device was provided; that failure proximately caused the accident. Comparative negligence is not a defense to § 240(1).
• Labor Law § 241(6): The court:
  • Affirmed summary judgment predicated on a violation of 12 NYCRR 23-1.7(b)(1)(i) (hazardous openings must be guarded or covered).
  • Reversed summary judgment predicated on 12 NYCRR 23-1.15 (safety railings standards) and 23-1.16 (safety belts and similar devices), holding those provisions are inapplicable where, by the plaintiff’s own account, no such devices were furnished in the first place.
• Bottom line: Order modified to deny § 241(6) liability premised on 23-1.15 and 23-1.16; otherwise affirmed, without costs or disbursements.

Analysis

Precedents Cited and Their Influence

• Gordon v Eastern Ry. Supply, 82 NY2d 555 (1993) and Sanatass v Consolidated Inv. Co., Inc., 10 NY3d 333 (2008):

  These cases emphasize that § 240(1) and § 241(6) liability rests on ownership; whether the owner contracted for or benefitted from the work is “legally irrelevant” for § 240(1). The Santos court invokes this principle to underscore that Breezy Point’s status as fee owner matters greatly.

• Morton v State of New York, 15 NY3d 50 (2010):

  For § 241(6), ownership alone is “necessary but not sufficient.” The Court of Appeals requires a “nexus” between the owner and the work—e.g., by lease, easement, or property interest. Santos applies Morton to the cooperative context, finding a sufficient nexus through the proprietary lease and the co-op’s approval and inspection regime.

• DeSabato v 674 Carroll St. Corp., 55 AD3d 656 (2d Dept 2008) and Pineda v 79 Barrow St. Owners Corp., 297 AD2d 634 (2d Dept 2002):

  Both decisions support treating cooperative corporations as “owners” under §§ 240(1) and 241(6), especially when proprietary leases and governance mechanisms connect the co-op to the work. DeSabato also supports rejecting the homeowners’ exemption for such entities.

• Fuentes v 257 Toppings Path, LLC, 225 AD3d 746 (2d Dept 2024), Zoto v 259 W. 10th, LLC, 189 AD3d 1523 (2d Dept 2020), Rodriguez v Waterfront Plaza, LLC, 207 AD3d 489 (1st Dept 2022), Yiming Zhou v 828 Hamilton, Inc., 173 AD3d 943 (2d Dept 2019):

  These cases address elevation-related hazards (including holes/openings) and reinforce § 240(1) liability when no safety device is provided. Santos aligns with this line, characterizing the attic hole as a qualifying elevation hazard.

• Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280 (2003):

  Key authority that comparative negligence is no defense to § 240(1) when a statutory violation is a proximate cause; only a sole-proximate-cause defense can defeat liability. Santos follows Blake, rejecting any comparative-fault arguments.

• Toalongo v Almarwa Ctr., Inc., 202 AD3d 1128 (2d Dept 2022) and St. Louis v Town of N. Elba, 16 NY3d 411 (2011):

  Under § 241(6), a plaintiff must tie the injury to a specific, concrete Industrial Code standard. Santos relies on 12 NYCRR 23-1.7(b)(1)(i) as sufficiently specific and applicable to hazardous openings.

• Moscati v Consolidated Edison Co. of N.Y., Inc., 168 AD3d 717 (2d Dept 2019) and Wein v East Side 11th & 28th, LLC, 186 AD3d 1579 (2d Dept 2020):

  Comparative negligence does not preclude liability under § 241(6) once a qualifying regulation is violated and that violation proximately causes injury. Santos applies this principle.

• Venegas v Shymer, 201 AD3d 1001 (2d Dept 2022) and Kwang Ho Kim v D & W Shin Realty Corp., 47 AD3d 616 (2d Dept 2008):

  Device-quality regulations like 12 NYCRR 23-1.15 (safety railings standards) and 23-1.16 (safety belts and similar devices) do not apply when no such devices were provided at all. Santos adopts this view and modifies the trial court’s ruling accordingly.

Legal Reasoning

1. Owner status of a cooperative via proprietary-lease nexus; homeowners’ exemption unavailable.

   Breezy Point is the fee owner of the land and operates as a cooperative. Shareholders occupy their homes under proprietary leases, and co-op governance required shareholders to apply for, and obtain, engineering department approval before commencing work. The co-op inspected during construction and approved completion—facts establishing a concrete nexus between the owner and the work under Morton. These features, consistent with DeSabato and Pineda, made Breezy Point an “owner” for both §§ 240(1) and 241(6). The homeowners’ exemption did not apply because Breezy Point is a cooperative corporate owner, not the individual owner of a one- or two-family dwelling, and its institutional role (review, inspections, approval) placed it outside the statutory safe harbor.

2. § 240(1) absolute duty and elevation hazard proved.

   The uncovered attic opening posed an elevation-related risk. The defendants did not provide any safety device (such as a cover fastened in place, a safety railing, or personal fall protection). That absence was a proximate cause of the fall. The defense failed to show the worker’s conduct was the sole proximate cause. Under Blake, comparative negligence is irrelevant once a § 240(1) violation proximately causes the injury. Summary judgment on § 240(1) was therefore proper.

3. § 241(6) analysis: the right and wrong Industrial Code predicates.
   • Correct predicate — 12 NYCRR 23-1.7(b)(1)(i): This rule mandates guarding or covering any hazardous opening “into which a person may step or fall.” The attic hole fit squarely within this provision. The violation was a proximate cause, warranting summary judgment for the plaintiff.
   • Incorrect predicates — 12 NYCRR 23-1.15 and 23-1.16: These sections set performance and quality standards for safety railings and for safety belts/related devices, respectively. They are triggered only when such devices are actually furnished. Because the plaintiff testified that no such devices were provided, these provisions were inapplicable. The appellate court accordingly modified the order to deny § 241(6) liability predicated on those sections.

Impact and Practical Implications

• Cooperative housing corporations face clear owner liability exposure.

  Santos confirms that co-ops acting as fee owners, operating through proprietary leases and oversight mechanisms, are “owners” under §§ 240(1) and 241(6). The co-op’s review/approval role underscores the nexus required by Morton. The homeowners’ exemption is typically unavailable to such institutional owners. Co-ops should reassess risk allocation, insurance coverage, and oversight protocols for shareholder renovation projects.

• Choosing the correct Industrial Code predicates is outcome-determinative under § 241(6).

  Plaintiffs should plead and prove duty-imposing, specific regulations applicable to the condition at issue. Where no safety devices were provided, device-quality rules (23-1.15, 23-1.16) generally will not apply; instead, condition-focused rules like 23-1.7(b)(1)(i) (hazardous openings) or other duty-creating provisions will be the stronger predicates.

• Hazardous openings remain a potent basis for liability.

  Open, unguarded floor/roof/attic holes often present a straightforward path to summary judgment under both § 240(1) (as elevation hazards when devices are missing) and § 241(6) (under 23-1.7(b)(1)(i)). Owners and contractors should implement robust hazard identification and immediate guarding/covering protocols.

• Defenses refined.

  Comparative negligence has limited value: it cannot defeat § 240(1), and it does not preclude § 241(6) liability if a specific regulation is violated. The viable defense remains “sole proximate cause,” which is typically unavailable when no safety devices were provided at all.

• Contracting and compliance strategies.
  • Co-ops and general contractors should include strong indemnification and additional-insured requirements in construction contracts with shareholders and trades.
  • Implement a documented safety program mandating: pre-work hazard surveys; guarding of openings; daily inspections; and stop-work authority for noncompliance.
  • Train supervisors to avoid creating a record of device absence in depositions—proof of providing appropriate devices and enforcing their use is critical to any defense.

Complex Concepts Simplified

• Nondelegable duty (Labor Law §§ 240(1), 241(6)): Owners and general contractors cannot shift their statutory safety obligations to others. They remain legally responsible for ensuring prescribed protections are furnished.
• Absolute liability vs. comparative negligence: Under § 240(1), once a statutory violation proximately causes injury, the worker’s comparative fault does not reduce the owner’s/contractor’s liability. Under § 241(6), comparative negligence may reduce damages but does not bar liability where a specific Industrial Code rule was violated.
• Sole proximate cause defense: A narrow defense under § 240(1) where the worker had available, adequate safety devices, knew he was expected to use them, but unreasonably chose not to or misused them—becoming the only cause of the accident. It fails when no devices were furnished.
• Hazardous opening (12 NYCRR 23-1.7(b)(1)(i)): Any hole or opening into which a person might step or fall must be covered (fastened) or guarded by a safety railing.
• Device-quality regulations (12 NYCRR 23-1.15 and 23-1.16): These do not impose a duty to provide devices; they set standards that apply only when such devices are actually supplied. If none are provided, these sections are typically inapplicable.
• Proprietary lease and “nexus”: In a cooperative, the shareholder’s right to occupy is created by a proprietary lease with the co-op, which retains fee ownership and approval powers. That lease/oversight relationship forms the required “nexus” connecting the owner to the work for § 241(6) purposes.
• Homeowners’ exemption: Protects owners of one- or two-family dwellings who contract for but do not direct or control the work. Corporate or institutional owners like co-ops generally cannot invoke it, especially where they exercise project oversight.
• Summary judgment and prima facie showing: The moving party must present evidence that, if uncontroverted, entitles it to judgment as a matter of law. The burden then shifts to the opponent to raise a triable issue of fact.

Conclusion

Santos v. Leeward Living, LLC reinforces two critical points in New York construction accident jurisprudence. First, cooperative housing corporations are “owners” under §§ 240(1) and 241(6) when proprietary leases and institutional oversight create a clear nexus to the work; the homeowners’ exemption is unavailable. Second, plaintiffs must select the correct Industrial Code predicates for § 241(6): condition-focused, duty-imposing rules like 12 NYCRR 23-1.7(b)(1)(i) support liability for hazardous openings, while device-quality standards (23-1.15, 23-1.16) cannot be invoked when no devices were supplied at all.

The decision will resonate throughout cooperative communities and among general contractors. It invites co-ops to audit their approval and inspection practices and adjust contractual risk transfer and safety enforcement. For litigators, Santos offers a roadmap: frame co-op owner status via proprietary leases and governance evidence; pursue § 240(1) where elevation hazards were unguarded; and, under § 241(6), anchor claims to the most apt Industrial Code provisions. The ruling thus sharpens both the doctrinal contours and the practical playbook for New York Labor Law litigation involving cooperative properties and hazardous floor openings.