Makeshift Passageways Are Not “Safety Devices” Under Labor Law § 240(1) and Unconstructed Planks/Adjacent Trenches Often Fall Outside Industrial Code “Runway/Ramp” and “Hazardous Opening” Rules

Introduction

Estrella v BMG Monroe I, LLC (2026 NY Slip Op 01939 [2d Dept Apr. 1, 2026]) arises from a construction-site fall in the “Smith Farms” project. Plaintiff Manuel Antonio Estrella (the “injured plaintiff”), a framer employed by Plaza Construction, fell when an unsecured metal plank—placed by coworkers across an eight- or nine-foot trench as a makeshift ramp—shifted and dropped into the trench.

The project was owned by BMG Monroe I, LLC (“BMG”), with Verticon II, LLC (“Verticon”) as general contractor, and Upstate Framing, Inc. (“Upstate Framing”) as a framing subcontractor that further subcontracted to Plaza Construction. Although a backfilled garage provided an alternative access route, the injured plaintiff stepped onto the plank to take a phone call during snowfall.

The principal issues on appeal were whether these facts triggered liability under Labor Law §§ 240(1) and 241(6) (via asserted Industrial Code violations), and whether the defendants could be liable under Labor Law § 200 and common-law negligence.

Summary of the Opinion

The Second Department affirmed the order denying plaintiffs’ summary judgment motion and granting defendants summary judgment dismissing the complaint as against each moving defendant.

  • Labor Law § 240(1): Dismissed because the metal plank was being used as a passageway and not as a statutorily contemplated safety device addressing an elevation-related work risk.
  • Labor Law § 241(6): Dismissed because the cited Industrial Code provisions were inapplicable:
    • 12 NYCRR 23-1.22(b) did not apply because the plank was not a constructed runway or ramp for persons.
    • 12 NYCRR 23-1.7(b) did not apply (at least as to Upstate Framing, and via record-searching as to BMG/Verticon) because the trench was not a “hazardous opening” within the regulation’s meaning where it was outside the work area.
  • Labor Law § 200 / Common-law negligence: Dismissed because the accident was attributed to the plaintiff’s use of an object not intended for the purpose, rather than a dangerous premises condition created or noticed by defendants.

The court also addressed motion practice: it declined to entertain plaintiffs’ attempt (made in opposition rather than by cross-motion) to add a different Industrial Code theory, and it relied on the court’s authority to “search the record” to award judgment even on grounds not raised by all movants.

Analysis

Precedents Cited

1) The scope of Labor Law § 240(1): elevation risk vs. ordinary site traversal

The court began with the standard articulation of § 240(1) as imposing a nondelegable duty and “absolute liability” when injury is proximately caused by failure to provide proper safety devices for elevation-related risks, quoting Caracciolo v SHS Ralph, LLC (226 AD3d 861) and Saint v Syracuse Supply Co. (25 NY3d 117). It reiterated the statutory text and “other devices” framework through Crutch v 421 Kent Dev., LLC (192 AD3d 977) and Ross v Curtis-Palmer Hydro-Elec. Co. (81 NY2d 494).

The decisive line of authority, however, was the Second Department’s “passageway” cases: Castro v Wythe Gardens, LLC (217 AD3d 822), Palacios v 29th St. Apts, LLC (110 AD3d 698), and Salcedo v Swiss Ranch Estates, Ltd. (79 AD3d 843). Those cases support the proposition that when a worker uses a plank or similar item as a means of getting from one location to another—rather than as a protective device for performing elevated work—the incident may fall outside § 240(1)’s core purpose.

Applying that framework, the court held the injured plaintiff was “attempting to use the metal plank as a passageway,” and therefore the event “did not come within the purview of Labor Law § 240(1).”

2) Industrial Code § 23-1.22(b): “runways and ramps” must be constructed for persons

On § 241(6), the court treated 12 NYCRR 23-1.22(b) as inapplicable because the plank was not a runway or ramp “constructed for the use of persons,” relying on Calle v City of New York (212 AD3d 763) and Gray v City of New York (87 AD3d 679). These authorities reflect a limiting principle: ad hoc site improvisations are not automatically transformed into regulated “runways” or “ramps” unless they are actually constructed/installed as such for pedestrian use.

3) Industrial Code § 23-1.7(b): “hazardous openings” and the work-area nexus

For 12 NYCRR 23-1.7(b), the court held the trench was not a “hazardous opening” as contemplated by the regulation because it was “outside of the area where the injured plaintiff was working,” citing Ramirez v Metropolitan Transp. Auth. (106 AD3d 799), Forschner v Jucca Co. (63 AD3d 996), and Alvia v Teman Elec. Contr. (287 AD2d 421). These cases collectively reinforce that the regulation targets openings that present a hazard in the area of the work in a manner contemplated by the Code, not every site condition at large.

4) Record-searching on summary judgment; pleading Industrial Code theories properly

Even though BMG and Verticon did not raise the “not a hazardous opening” argument in their moving papers, the court invoked the power to “search the record” and award judgment, quoting Grimaldi v Pagan (135 AD2d 496) and citing CPLR 3212(b).

Plaintiffs’ attempt to pivot to 12 NYCRR 23-1.7(d) (slipping hazards) failed procedurally because it was requested in opposition papers rather than by cross-motion, referencing CPLR 2215 and Fried v Jacob Holding, Inc. (110 AD3d 56). Substantively, the court noted the injured plaintiff testified he did not slip on snow; instead the plank fell because it was unsecured and he “lost concentration,” distinguishing Booth v Seven World Trade Co., L.P. (82 AD3d 499).

5) Labor Law § 200 / negligence: dangerous condition vs. plaintiff’s misuse

On § 200 and negligence, the court reiterated § 200 as a codification of the common-law safe workplace duty, citing Doto v Astoria Energy II, LLC (129 AD3d 660) and Montes-Vidal v New York State Thruway Auth. (238 AD3d 1131). It then applied the “dangerous premises condition” framework (creation or notice) drawn from Calle v City of New York.

The dispositive factual framing was that the injuries “did not result from a dangerous condition,” but from “the injured plaintiff’s own conduct in stepping on a metal plank, which was not intended for that purpose,” with support from Singh v 180 Varick, LLC (203 AD3d 1194).

Legal Reasoning

  1. Characterization of the activity controls the statute/regulation. The court classified the plank usage as ordinary site traversal (“passageway”), not an elevation-safety device scenario under § 240(1), and not a constructed pedestrian ramp/runway under 23-1.22(b).
  2. Industrial Code applicability is a threshold gatekeeper under § 241(6). The court did not merely ask whether the condition was unsafe; it asked whether the cited provisions legally governed the condition. Finding inapplicability ended the § 241(6) inquiry.
  3. Work-area connection matters for “hazardous opening.” By stressing that the trench was outside the area where work was being undertaken, the court treated “hazardous opening” as context-dependent, not a site-wide strict liability standard.
  4. Motion practice can decide the case. Two procedural tools were outcome-determinative: (a) the appellate court’s authority under CPLR 3212(b) to search the record and grant judgment; and (b) the requirement under CPLR 2215 that new affirmative relief (like amending the bill of particulars) be sought by cross-motion, not embedded in opposition papers.
  5. § 200/Negligence turned on “condition” vs. “conduct.” By framing the incident as plaintiff’s misuse of a non-intended object, defendants avoided the “created or had notice” premises-condition path to liability.

Impact

  • Constrains § 240(1) claims based on improvised access. The decision strengthens a defense theme: when a worker falls while using a material or tool as a shortcut or improvised crossing—rather than while performing elevated work needing statutory devices—courts may treat it as outside § 240(1)’s “proper protection” scope.
  • Clarifies the boundary of “runways and ramps” under 23-1.22(b). Plaintiffs relying on 23-1.22(b) will need proof the structure was actually constructed/installed for pedestrian use, not merely placed temporarily as a convenience.
  • Reinforces “hazardous opening” limits under 23-1.7(b). The emphasis on the trench being outside the work area suggests defendants may defeat 23-1.7(b) theories by developing record proof about work sequencing, designated work zones, and intended access routes.
  • Procedural discipline: plead and move precisely. The refusal to entertain a new Industrial Code theory absent a cross-motion, coupled with record-searching under CPLR 3212(b), signals that parties must: (a) plead Industrial Code predicates early and clearly, and (b) expect courts to grant dismissal if the record negates applicability—even where a particular movant’s papers are imperfect.
  • § 200 strategy: recast as “means and methods”/misuse rather than premises defect. Defendants will cite this case to argue that injuries from stepping onto a non-intended object are not “dangerous conditions” attributable to owner/GC notice.

Complex Concepts Simplified

Labor Law § 240(1) (“Scaffold Law”)
A worker-friendly statute imposing near-strict liability for certain elevation-related injuries when proper enumerated (or similar) safety devices are missing or inadequate. The key question is whether the injury flows from a covered elevation risk requiring statutory protection—not every fall on a construction site.
Labor Law § 241(6)
Imposes a nondelegable duty to comply with specific Industrial Code rules. A plaintiff must identify a concrete, applicable regulation and show it was violated. If the regulation does not apply to the facts, the claim fails even if the situation was arguably unsafe.
12 NYCRR 23-1.22(b) (Runways and ramps)
Covers built access structures for people to walk on. A loose plank used informally as a shortcut is typically treated differently from an installed ramp/runway.
12 NYCRR 23-1.7(b) (Hazardous openings)
Addresses certain openings that pose a falling hazard. Courts often examine whether the opening is of the type and in the location the rule targets—commonly focusing on the relationship to the actual work area and operations.
“Search the record” (CPLR 3212[b])
On summary judgment, a court may grant judgment to a party even on a ground not perfectly raised, so long as the record supports it—preventing outcomes driven solely by briefing omissions.
Cross-motion (CPLR 2215)
If you want the court to grant you affirmative relief (like amending a bill of particulars), you generally must formally cross-move; asking in opposition papers may be rejected.

Conclusion

Estrella v BMG Monroe I, LLC underscores a practical limiting principle in New York construction litigation: not every fall involving a height differential is a § 240(1) case, and not every temporary plank or nearby trench triggers § 241(6) via the Industrial Code. By classifying the plank as a makeshift passageway (not a protective device or constructed ramp), treating the trench as outside the regulated “hazardous opening” context, and enforcing procedural requirements for adding new regulatory theories, the Second Department provides defendants a structured path to dismissal where the accident stems from improvised access and inapplicable Code provisions rather than a covered statutory safety failure.