Labor Law § 240(1) Applies to Falls into Work-Created Excavations; Mud Inherent to Trenching Is Not a “Foreign Substance” Under 12 NYCRR 23-1.7(d)

1. Introduction

Letersky v Militello Farms, Inc. arises from a nighttime emergency response to a broken water line owned by the Erie County Water Authority (ECWA). Plaintiff Kevin Letersky alleged he was injured while marking fuel lines in preparation for an emergency repair when he fell into an excavated hole that was “unmarked and unguarded.” The accident occurred on property owned by defendant Militello Farms, Inc. (Militello). ECWA hired defendant Russo Development, Inc. (Russo) to perform the emergency repair work.

The litigation teed up recurring and fact-sensitive New York construction-accident questions: (i) when a landowner is liable under common-law negligence and Labor Law § 200 for an allegedly dangerous condition at a worksite; (ii) which Industrial Code provisions can sustain a Labor Law § 241 (6) claim in the context of trenching/excavation conditions (including mud); and (iii) whether Labor Law § 240 (1) can reach a fall from ground level into an excavation created for—and integral to—the work being performed.

2. Summary of the Opinion

The Fourth Department modified the order in Appeal No. 1 by dismissing the Labor Law § 241 (6) claim against Russo to the extent predicated on alleged violation of 12 NYCRR 23-1.7 (d) (slippery conditions/foreign substances). As modified, the order was affirmed.

Key holdings:

• Militello (landowner): Summary judgment properly granted dismissing common-law negligence and Labor Law § 200 claims because Militello demonstrated it did not create and lacked actual/constructive notice of the uncovered excavation and lacked control; plaintiff failed to raise a triable issue of fact.
• Russo (contractor): Summary judgment properly denied on common-law negligence and Labor Law § 200 due to factual disputes, including timeline and whether Russo created the excavation and exercised general control sufficient to remedy the peril.
• Labor Law § 241 (6):
  • 12 NYCRR 23-1.7 (d) did not apply where the alleged slipping condition was mud inherent to the work surface and the nature of the repair; the mud was not a “foreign substance.”
  • 12 NYCRR 23-1.7 (b) (1) (i)-(iii) (hazardous openings) remained viable against Russo because Russo failed to eliminate factual questions concerning applicability/violation and responsibility for an uncovered, unmarked excavation of significant depth/size.
• Labor Law § 240 (1): The court below erred in dismissing the claim on the theory that § 240 (1) categorically excludes falls into excavated holes. Where the hole was deliberately excavated for the work and posed an elevation-related risk, § 240 (1) can apply. However, plaintiff was not entitled to summary judgment on liability because divergent accounts created fact issues on how the accident occurred and causation.

3. Analysis

3.1 Precedents Cited

A. Dangerous-condition liability under common-law negligence and Labor Law § 200 (notice/control)

The Opinion treats plaintiff’s § 200 and negligence theories against Militello as “dangerous condition” claims (an uncovered excavated hole), triggering the familiar notice framework: the landowner must show it did not create the condition and lacked actual or constructive notice.

• Menear v Kwik Fill (174 AD3d 1354, 1357 [4th Dept 2019]) is quoted for the “initial burden” rule: on a dangerous-condition theory, a defendant landowner must demonstrate it did not create and had no actual/constructive notice of the condition.
• Parsons v County of Steuben (240 AD3d 1333, 1336 [4th Dept 2025]) and Forman v Carrier Corp. (172 AD3d 1920, 1920 [4th Dept 2019]) reinforce the same burden-allocation principle in the Fourth Department’s § 200 jurisprudence.
• Zuckerman v City of New York (49 NY2d 557, 562 [1980]) supplies the summary judgment standard for the opponent’s burden—once the movant establishes entitlement, the opposing party must produce admissible evidence sufficient to raise a triable issue of fact.

Applying these authorities, the court credited Militello’s owner’s testimony of no knowledge of the emergency work and emphasized the short time the excavation allegedly existed (“at most, a few hours”), undercutting constructive notice. In contrast, the court refused to grant Russo summary judgment on § 200/negligence because the record contained “diverging accounts” of the timeline and whether Russo arrived first and created the excavation—factual issues that Zuckerman prevents the court from resolving on summary judgment.

B. How appellate courts view evidence on summary judgment (inferences and the nonmovant)

The Opinion expressly uses high-level Court of Appeals guidance for summary judgment review:

• Matter of Eighth Jud. Dist. Asbestos Litig. (33 NY3d 488, 496 [2019]) and De Lourdes Torres v Jones (26 NY3d 742, 763 [2016]) for the rule that evidence must be viewed in the light most favorable to the nonmovant and the nonmovant receives every favorable inference.

These cases are not mere “boilerplate” here; they do the work of keeping plaintiff’s claims alive against Russo where the record contains competing narratives about sequencing, control, and creation of the excavation—matters that often decide § 200 and § 241 (6) liability.

C. Industrial Code “slippery conditions” and the meaning of “foreign substance”

The court dismissed plaintiff’s reliance on 12 NYCRR 23-1.7 (d)—which requires removal/sanding/covering of “ice, snow, water, grease and any other foreign substance”—because mud in these circumstances was not a “foreign substance.”

• Bazdaric v Almah Partners LLC (41 NY3d 310, 319 [2024]) is invoked as the controlling interpretive anchor on what counts as a “foreign substance” under the regulation.
• The Fourth Department’s own line—Walkow v MJ Peterson/Tucker Homes, LLC (185 AD3d 1463, 1465 [4th Dept 2020]) and Smith v Nestle Purina Petcare Co. (105 AD3d 1384, 1386 [4th Dept 2013])—supports the conclusion that certain site conditions (like mud) may be inherent in the work and therefore outside the “foreign substance” concept.
• Velasquez v 795 Columbus LLC (103 AD3d 541, 542 [1st Dept 2013]) is cited as a contrast (“cf.”), signaling that other departments may treat different factual settings differently, but the Fourth Department found the “inherent to the work” characterization decisive here.

This is an important narrowing move: plaintiffs frequently plead 23-1.7(d) in excavation/trenching cases when mud is present; the Opinion reiterates that mud can be part of the “surface on which plaintiff was working” and “inherent in the nature of the work,” thus outside the regulatory target.

D. Industrial Code “hazardous openings” (23-1.7[b]) remains a viable excavation theory

The court sustained the viability of 12 NYCRR 23-1.7 (b) (1) (i)-(iii) as a predicate for § 241 (6), emphasizing that it applies to “any hazardous opening into which a person may step or fall” of “significant depth and size.”

• Lopez v Fahs Constr. Group, Inc. (129 AD3d 1478, 1479 [4th Dept 2015]) is quoted for the dual propositions that (i) the regulation is sufficiently specific for § 241 (6) and (ii) it applies to hazardous openings of significant depth/size.
• Wrobel v Town of Pendleton (120 AD3d 963, 966 [4th Dept 2014]) is cited both for the scope of “hazardous opening” and later (in the § 240 analysis) for distinguishing work-connected excavations from “mere hole[s] in the ground.”
• Kuligowski v One Niagara, LLC (177 AD3d 1266, 1268 [4th Dept 2019]) and Marino v Manning Squires Hennig Co., Inc. (208 AD3d 1020, 1021-1022 [4th Dept 2022]) support the conclusion that where the defendant’s own submissions create factual issues about who created/controlled the opening and whether it was covered/guarded, summary judgment is inappropriate.

E. Labor Law § 240 (1): excavation falls can be elevation risks when tied to the work

The most consequential doctrinal point is the court’s rejection of a categorical exclusion of excavation falls from § 240 (1).

• Wilinski v 334 E. 92nd Hous. Dev. Fund Corp. (18 NY3d 1, 7 [2011]) supplies the “core premise” of § 240 (1): liability for failure to provide adequate protection against reasonably preventable, gravity-related accidents.
• Runner v New York Stock Exch., Inc. (13 NY3d 599, 603 [2009]) provides the “single decisive question”: whether injuries directly resulted from a failure to provide adequate protection against a risk arising from a physically significant elevation differential.
• Wild v Marrano/Marc Equity Corp. (75 AD3d 1099, 1099 [4th Dept 2010]) is used to classify certain excavation falls as “the type of elevation-related risk” covered by § 240 (1).
• Covey v Iroquois Gas Transmission Sys. (89 NY2d 952, 953-954 [1997]) and Wrobel v Town of Pendleton (120 AD3d at 965-966) are cited to support the proposition that falls into excavations can implicate § 240 (1), particularly where the excavation is created for the work and not merely a preexisting or unrelated depression.
• Caradori v Med Inn Ctrs. of Am. (5 AD3d 1063, 1064 [4th Dept 2004]) is invoked to distinguish hazards that are merely “usual and ordinary dangers of a construction site” from gravity-related elevation risks requiring statutory protection.

On plaintiff’s request for summary judgment (liability as a matter of law), the court relied on Fourth Department authority rejecting summary resolution where the movant’s own papers contain divergent accounts of the accident mechanism:

• Malvestuto v Town of Lancaster (201 AD3d 1339, 1340 [4th Dept 2022])
• Militello v Landsman Dev. Corp. (133 AD3d 1378, 1379 [4th Dept 2015])
• Sims v City of Rochester (115 AD3d 1355, 1356 [4th Dept 2014]) (movant must show defendant’s failure proximately caused injury)
• Nelson v Ciba-Geigy (268 AD2d 570, 572 [2d Dept 2000]) (cited alongside Sims on causation and proof deficiencies)

3.2 Legal Reasoning

A. Parsing the claims by liability theory: condition vs. means and methods

The Opinion implicitly applies a standard § 200 taxonomy: where the claim is predicated on a dangerous condition (here, an allegedly uncovered excavation), the decisive issues are creation and notice (and, contextually, control). That framing enabled a clean split:

• Militello won because it demonstrated lack of knowledge and the excavation’s short duration, defeating constructive notice; plaintiff did not counter with evidence sufficient under Zuckerman v City of New York.
• Russo did not win because the record contained conflicting proof on whether it created the excavation and whether it had general control sufficient to remedy the hazard before plaintiff encountered it.

B. Industrial Code selection matters: “mud” is not automatically a 23-1.7(d) case

The court’s 23-1.7(d) analysis hinges on statutory purpose: the regulation targets slippery “foreign substances” that should be removed or treated to provide safe footing. By characterizing the mud as (i) part of the surface and (ii) inherent in the emergency water-line repair, the court placed it outside the regulatory scope. This reasoning narrows a commonly pled predicate in excavation cases and reinforces that plaintiffs must link the slipper to a qualifying “foreign substance,” not merely “messy ground” typical of trenching.

C. Hazardous opening regulation (23-1.7[b]) remains fact-driven and robust

Unlike 23-1.7(d), 23-1.7(b) squarely addresses the core allegation: stepping or falling into an opening. The court’s refusal to grant Russo summary judgment reflects two interlocking propositions:

• Applicability: If an excavation is “one of significant depth and size,” the regulation can apply.
• Responsibility/violation: Where the defendant’s own submissions generate factual disputes about whether it created/left uncovered an excavation, summary judgment is inappropriate.

D. The key clarification under Labor Law § 240 (1): excavation falls are not categorically excluded

The Opinion’s principal doctrinal contribution is to correct the trial court’s categorical approach: a fall from ground level into an excavation can be an elevation-related risk when the excavation is deliberately created in connection with the work and is of the sort that requires protective devices or safety measures. The court distinguished a work-created excavation from “mere hole[ ] in the ground” unconnected to the work.

Still, the Fourth Department refused to grant plaintiff judgment as a matter of law because factual disputes persisted on “the precise mechanism” and timeline of the accident—issues that bear directly on whether any failure to provide protection was a proximate cause of the injury.

3.3 Impact

The decision is likely to influence motion practice in three concrete ways:

• Labor Law § 240 (1) excavation cases: Defendants will have a harder time securing dismissal by arguing that falls into excavations are per se outside § 240 (1). Plaintiffs, in turn, will emphasize the excavation’s connection to the work and the “physically significant elevation differential” framing from Runner v New York Stock Exch., Inc..
• Industrial Code pleading discipline: The dismissal of the 23-1.7(d) predicate underscores that “mud at a trench site” may be treated as inherent to the work and not a “foreign substance,” pushing plaintiffs to focus more heavily on 23-1.7(b) (hazardous openings) and other excavation-appropriate provisions where supported by facts.
• Notice and timeline disputes remain case-dispositive: The divergent accounts about when the excavation was dug and who arrived first prevented summary judgment for Russo. Parties should expect courts to treat timeline evidence (dispatch logs, call sheets, equipment delivery, witness sequencing) as central in emergency-response construction scenarios.

4. Complex Concepts Simplified

• Summary judgment: A pretrial ruling that there is no real factual dispute and one side wins as a matter of law. Under Zuckerman v City of New York, once the moving party makes a showing, the opponent must respond with admissible evidence creating a real factual issue.
• Labor Law § 200: New York’s codification of an owner/contractor’s duty to provide a safe workplace. When the claim is about a dangerous condition (like an uncovered hole), liability often turns on who created it and who had notice of it.
• Actual vs. constructive notice: “Actual” means the defendant truly knew about the hazard; “constructive” means it existed long enough and was visible enough that the defendant should have known.
• Labor Law § 241 (6): Imposes a nondelegable duty to comply with specific Industrial Code regulations in construction, excavation, and demolition work. A plaintiff must identify a sufficiently specific regulation (here, 23-1.7[b] and 23-1.7[d] were litigated).
• Labor Law § 240 (1) (“Scaffold Law”): Protects workers from gravity-related elevation risks (falls or being struck by falling objects) where safety devices should have been provided. The key inquiry is whether the harm flowed from a failure to provide adequate protection against a significant elevation differential—not whether the worker was literally on a scaffold.
• “Foreign substance” under 12 NYCRR 23-1.7(d): Not every slippery condition qualifies. In this case, mud that was part of the work surface and inherent to trench repair was not treated as a removable “foreign substance.”

5. Conclusion

Letersky v Militello Farms, Inc. sharpens two practical rules in New York worksite litigation: (1) a fall into a deliberately excavated, work-connected hole may present a covered “elevation-related risk” under Labor Law § 240 (1), and courts should not dismiss such claims on categorical grounds; and (2) mud inherent to excavation work is not necessarily a “foreign substance” under 12 NYCRR 23-1.7(d), narrowing that predicate for Labor Law § 241 (6). At the same time, the decision illustrates how factual conflicts—especially about timeline, creation of the condition, and accident mechanism—can preserve or defeat claims at the summary judgment stage, even when the governing legal standards are settled.