Labor Law § 240(1) May Reach Falls on Permanent Stairways Used as Work Access (Including Lighting-Based Safety-Device Theories), and “Arising Out Of” Indemnity Is Triggered by Injury Tied to Subcontractor Work

I. Introduction

Mazzurco v Broadway 52nd L.P. (2026 NY Slip Op 04822 [1st Dept July 30, 2026]) is a First Department decision addressing three recurring construction-litigation flashpoints: (1) when a subcontractor becomes a Labor Law “statutory agent” subject to liability under Labor Law §§ 240(1), 241(6), and 200; (2) whether a fall down a permanent stairway can support a Labor Law § 240(1) claim absent a structural defect; and (3) how broadly “arising out of” language in an indemnification clause is applied to shift risk upstream or downstream.

Parties and posture. Plaintiffs (Onofrio Mazzurco and another) sued the owner, Broadway 52nd L.P. (“Broadway”), and a subcontractor, Robert B. Samuels, Inc. (“RBS”). Plaintiff, employed by nonparty J.T. Magen and Company, Inc., allegedly fell down a dark stairwell when his foot became tangled in a loop of wire (Cat-6 cable). RBS sought summary judgment dismissing claims against it. Broadway sought summary judgment on indemnification/contribution cross-claims against RBS, including contractual indemnification.

Key issues. The appeal teed up: (i) whether RBS could be liable as a statutory agent and/or as a tortfeasor alleged to have created/failed to remedy the hazardous condition; (ii) whether the stairway incident presented a viable § 240(1) theory; (iii) whether alleged inadequate lighting supports § 241(6) via Industrial Code 12 NYCRR 23-1.30; and (iv) whether Broadway was entitled to common-law and contractual indemnification from RBS.

II. Summary of the Opinion

The First Department modified the order to grant Broadway summary judgment on contractual indemnification against RBS, and otherwise affirmed:

  • RBS summary judgment denied on Labor Law §§ 240(1), 241(6), 200, and common-law negligence because the record raised issues of fact that RBS worked in the stairway and may have created/controlled the hazards (wire and lighting).
  • Labor Law § 240(1): issues of fact exist whether the staircase constituted a safety device in this context and whether § 240(1) applies even without structural defect; the court also refused to decide a limitation theory not raised by appellant.
  • Labor Law § 241(6): triable issue under 12 NYCRR 23-1.30 (illumination) based on testimony that darkness contributed.
  • Broadway common-law indemnification/contribution: Broadway established entitlement (vicarious exposure; RBS responsible for the conditions).
  • Broadway contractual indemnification: granted—injury “arising out of” RBS work triggered the clause; motion not premature after dismissal of Broadway’s own negligence/§ 200 exposure.

Dissent (Friedman, J., joined by O’Neill-Levy, J.): would have dismissed the Labor Law § 240(1) claim as a matter of law, reasoning the alleged cause was an “ordinary tripping” hazard (wire debris) and the permanent, structurally sound stairway was not an inadequate safety device; lighting belongs under § 241(6), not § 240(1).

III. Analysis

A. Precedents Cited

1. Statutory agent and subcontractor liability under Labor Law

The majority grounded potential Labor Law liability for RBS in the “statutory agent” doctrine:

  • Nascimento v Bridgehampton Const. Corp., 86 AD3d 189, 193 (1st Dept 2011): establishes that a subcontractor may be liable where it was “delegated the supervision and control either over the specific work area involved or the work which gave rise to the injury.” The court used this as the governing test for whether RBS could be treated as a statutory agent.
  • Bacova v Paramount Leasehold, L.P., 223 AD3d 428, 430 (1st Dept 2024) and Payne v NSH Community Servs., Inc., 203 AD3d 546, 547 (1st Dept 2022): reinforce and operationalize the Nascimento framework, supporting denial of summary judgment where the record suggests area/work control.

On negligence-style theories (creation of condition, causation), the court cited: Wenk v Extell W. 57th St. LLC, 188 AD3d 550, 551 (1st Dept 2020), for the proposition that evidence a party created or contributed to a dangerous condition can sustain common-law negligence exposure.

Addressing the defense that plaintiff’s job included debris removal, the court relied on: Trinajstic v St. Owner, LP, 149 AD3d 631, 632 (1st Dept 2017) and Lopez v Fordham Univ., 69 AD3d 532, 532-533 (1st Dept 2010), lv dismissed 15 NY3d 821 (2010), emphasizing the critical factual question: what the worker was actually doing at the moment of injury (here, walking down to inspect whether cleanup was needed, not actively removing debris).

2. Labor Law § 240(1) and permanent stairways: access, safety-device function, and limits on appellate issue-framing

The majority’s § 240(1) discussion is shaped by two lines of authority: (i) stairways/access routes as potential safety devices in context, and (ii) the court’s refusal to decide an unraised limiting theory.

  • Ramirez v Shoats, 78 AD3d 515, 517 (1st Dept 2010): cited for the principle that even if an alternative route existed, a stairway may be the most efficient access and can remain relevant to § 240(1) analysis.
  • Gamez v Sandy Clarkson LLC, 221 AD3d 453 (1st Dept 2023) and Waldron v City of New York, 2020 WL 7315593, *5, NY Misc LEXIS 10426, *11-12 (Sup Ct, NY County 2020), affd 203 AD3d 565 (1st Dept 2020): used to show that stairway-based § 240(1) claims can survive summary judgment; the majority stressed these cases did not turn on (or conclusively establish) “structural defect” as a necessary condition for a viable § 240(1) stairway theory at the pleading/summary-judgment stage.

On appellate restraint—declining to decide a theory not advanced by appellant—the majority invoked:

  • Matter of 381 Search Warrants Directed to Facebook, Inc. [New York County Dist. Attorney's Off.], 29 NY3d 231, 247 n 7 (2017), quoting Misicki v Cardona, 12 NY3d 511, 519 (2009): the “no blindsiding litigants” principle—appeals should generally be decided on rationales advanced by the parties, not on new theories inserted by the court or an opponent.
  • Matter of AL.C [Administration for Children's Servs. Of the City of N.Y.], 229 AD3d 418, 423-424 (1st Dept 2024): cited to reinforce the same institutional norm within the First Department.

The dissent drew heavily from a competing authority set:

  • Nicometi v Vineyards of Fredonia, LLC, 25 NY3d 90, 98-99 (2015): for the elevation-risk boundary—§ 240(1) does not federalize (so to speak) “ordinary tripping or slipping hazards” that are not elevation-related risks.
  • Ryan v Morse Diesel, 98 AD2d 615, 616 (1st Dept 1983): a First Department case the dissent read as rejecting a permanent stairway as a § 240(1) device when used merely as passage (via noscitur a sociis).
  • Second Department authorities cited by the dissent—Verdi v SP Irving Owner, LLC, 227 AD3d 932, 936 (2d Dept 2024); Sullivan v New York Athletic Club of City of N.Y., 162 AD3d 950, 953 (2d Dept 2018), lv dismissed 32 NY3d 1196 (2019); Gallagher v Andron Constr. Corp., 21 AD3d 988, 989 (2d Dept 2005)—to support a more categorical view that permanent stairways are not § 240(1) safety devices.
  • The dissent also used Caba v 587-91 Third Owner, LLC, 213 AD3d 520, 520-521 (1st Dept 2023) and Runner v New York Stock Exch., Inc., 13 NY3d 599 (2009) to distinguish cases where § 240(1) liability attached not because stairs were defective, but because defendants failed to provide an additional device to control an elevation-related descent of a load or task.

In response, the majority’s footnote emphasized Caba v 587-91 Third Owner, LLC, 213 AD3d 520, 521 (1st Dept 2023), citing Conlon v Carnegie Hall Socy., Inc., 159 AD3d 655, 655 (1st Dept 2018), to frame two viable § 240(1) pathways at this stage: (i) the stairway as the required means of access functioning as the device, or (ii) the stairway context requiring an adequate safety device (with plaintiff arguing proper lighting).

3. Labor Law § 241(6) illumination

The majority affirmed that alleged darkness can support a § 241(6) claim under the Industrial Code:

  • Favaloro v Port Auth. of N.Y. & N.J., 191 AD3d 524, 525 (1st Dept 2021): cited to support that testimony about inadequate illumination can raise a triable issue under 12 NYCRR 23-1.30.

4. Indemnification: common-law and contractual

On common-law indemnification, the majority relied on:

  • Tapia v 126 First Ave., 282 AD2d 220, 220 (1st Dept 2001) and Naughton v City of New York, 94 AD3d 1, 10 (1st Dept 2012): supporting that a party exposed only vicariously (and not negligent) may obtain common-law indemnification from the party responsible for the injury-producing condition.

On contractual indemnification, the majority applied:

  • Regal Constr. Corp. v National Union Fire Ins. Co. of Pittsburgh, PA, 15 NY3d 34, 38 (2010): for the breadth of “arising out of” language—triggered when the injury originates from, is incident to, or has connection with the indemnitor’s work, not requiring proof of the indemnitor’s negligence as the sole cause.
  • Sunun v Klein, 188 AD3d 507, 509 (1st Dept 2020): used to reject the “premature” argument in context—where the moving party has already obtained dismissal of its own negligence/§ 200 exposure and the record links the injury to the subcontractor’s work.

B. Legal Reasoning

1. Why RBS could not obtain summary judgment

The court treated RBS as potentially within the Labor Law’s reach because the record showed it “worked in the stairway at issue” and because there were factual disputes about whether RBS created or failed to remedy two alleged hazards: (i) inadequate lighting and (ii) a loop of Cat-6 wire on the stairs. Under the Nascimento v Bridgehampton Const. Corp. framework, that evidence can support a finding of delegated supervision/control over the relevant area or work, making RBS a statutory agent for purposes of §§ 240(1) and 241(6), and supporting § 200/common-law negligence exposure if it created or had notice of the condition.

The “plaintiff’s job included debris removal” defense did not warrant summary dismissal because the operative inquiry is what plaintiff was doing when he fell; the testimony was that he was descending to check whether cleaning was needed, not actually performing debris removal at that moment (Trinajstic v St. Owner, LP; Lopez v Fordham Univ.).

2. The majority’s § 240(1) holding: survival, not ultimate liability

The majority did not hold that § 240(1) liability is established; it held that summary judgment dismissal was improper because factual questions remained, including whether the stairway functioned as a § 240(1) safety device in this work-access setting and whether additional safety measures (including adequate lighting, as framed by plaintiffs) were required.

Two doctrinal moves are central:

  • Access and efficiency: even if a freight elevator was sometimes available, that does not automatically negate § 240(1) when the stairs were an efficient means of access (Ramirez v Shoats).
  • Issue-framing restraint: the majority refused to adopt the dissent’s structural-defect limitation because (as the majority characterized the briefing) appellant did not squarely raise that limiting theory; the court relied on Matter of 381 Search Warrants Directed to Facebook, Inc. [New York County Dist. Attorney's Off.] and Misicki v Cardona to avoid “blindsiding” litigants with unbriefed rationales.

3. The dissent’s § 240(1) theory: elevation risk vs. ordinary tripping

The dissent would have drawn a bright(er) line: tripping on a wire resting on a permanent, structurally sound stairway is an “ordinary tripping” hazard outside § 240(1), echoing Nicometi v Vineyards of Fredonia, LLC. It also emphasized authorities (including Ryan v Morse Diesel and Second Department cases) skeptical that permanent stairs qualify as § 240(1) devices.

Importantly, the dissent accepted that § 240(1) can apply on nondefective stairs in some circumstances, but only where the failure was the absence of a distinct safety device required for the task (illustrated by Caba v 587-91 Third Owner, LLC and Runner v New York Stock Exch., Inc.). In the dissent’s view, no additional device would have prevented tripping on the wire; therefore, no § 240(1) claim.

4. Why the § 241(6) illumination claim survives

The majority treated darkness as a classic § 241(6) issue because the Industrial Code expressly regulates illumination in construction passage/work areas. Plaintiff testified both to the wire and to darkness as a contributing factor, supporting a triable issue under 12 NYCRR 23-1.30, consistent with Favaloro v Port Auth. of N.Y. & N.J..

5. Indemnification: Broadway’s complete win (after modification)

Common-law indemnification: Broadway established it was not negligent in maintaining the stairwell and faced, at most, vicarious exposure; the alleged cable/lighting conditions were RBS’s responsibility, entitling Broadway to indemnification under Tapia v 126 First Ave. and Naughton v City of New York.

Contractual indemnification: The First Department held the clause was triggered because it required indemnity for damages “arising out of” RBS’s work; the record linked the alleged injury (wire/darkness in the stairwell where RBS worked) to RBS’s performance or lack of performance. Under Regal Constr. Corp. v National Union Fire Ins. Co. of Pittsburgh, PA, “arising out of” is read broadly. The court also rejected prematurity because Broadway’s own negligence and Labor Law § 200 claims had been dismissed, and RBS failed to raise a triable issue rebutting the “arising out of” connection (Sunun v Klein).

C. Impact

1. § 240(1) stairway cases in the First Department: continued expansion-by-survival

The decision reinforces that, in the First Department, defendants may have difficulty obtaining dismissal of § 240(1) claims involving falls on permanent stairways used for work access, even where the alleged hazard sounds like a “tripping” condition (wire) rather than a structural failure—particularly when plaintiffs can articulate a theory that the stairway functioned as the relevant safety device or that additional protective measures were required for safe passage in the elevation context.

The dissent highlights that this remains a contested doctrinal boundary, with inter-departmental tension (Second Department authority cited for a more categorical stairway exclusion). Practically, Mazzurco signals that in the First Department: (i) summary judgment dismissal may be hard to obtain where the stairway is integral to the work route, and (ii) courts may resist narrowing § 240(1) on theories not crisply presented by appellants.

2. Stronger contractual indemnification outcomes on “arising out of” language

The modification is consequential for risk transfer: where an owner’s negligence/§ 200 exposure is dismissed, and the injury-producing conditions are connected to the subcontractor’s work scope, the First Department appears willing to grant contractual indemnification on summary judgment under the broad “arising out of” test of Regal Constr. Corp. v National Union Fire Ins. Co. of Pittsburgh, PA.

3. Litigation conduct: briefing choices matter

The majority’s reliance on Matter of 381 Search Warrants Directed to Facebook, Inc. [New York County Dist. Attorney's Off.] and Misicki v Cardona underscores a practical appellate lesson: if a party wants dismissal on a particular limiting rationale (e.g., “§ 240(1) requires a structurally defective stairway”), it must clearly raise and develop that argument. Courts may decline to decide (or may criticize) narrowing theories introduced through dissent or implication rather than direct advocacy.

IV. Complex Concepts Simplified

  • Labor Law § 240(1) (“Scaffold Law”): imposes strict(ish) liability on owners/contractors (and statutory agents) for failing to provide proper safety devices to protect workers from special elevation-related risks. The fight is often about whether the accident is truly “elevation-related” and whether a required device was missing or inadequate.
  • Permanent stairway as a “safety device”: some cases treat stairs used as part of the work’s means of access or task as potentially within § 240(1), while other authorities (especially outside the First Department, per the dissent’s citations) are more skeptical. In Mazzurco, the majority held at least that dismissal was not warranted on this record.
  • Labor Law § 241(6): allows a claim when a specific Industrial Code regulation is violated. Here, the relevant rule is 12 NYCRR 23-1.30, requiring sufficient illumination where workers must work or pass.
  • Labor Law § 200: codifies common-law workplace safety duties; liability typically turns on supervision/control over the work or notice/creation of a dangerous premises condition.
  • Statutory agent: a subcontractor can be treated like the contractor/owner for Labor Law purposes if it had delegated control over the injury-producing work area or activity.
  • Common-law indemnification: shifts loss from a party held vicariously liable (without fault) to the party actually at fault.
  • Contractual indemnification (“arising out of”): if the contract says indemnity applies to claims “arising out of” the subcontractor’s work, that phrase is interpreted broadly; the injury need only be connected to the subcontractor’s work, not exclusively caused by it.

V. Conclusion

Mazzurco v Broadway 52nd L.P. does two important things. First, it confirms that in the First Department, § 240(1) claims stemming from falls on permanent stairways used for work access may survive summary judgment even absent a clear showing of structural defect—particularly where the record supports competing theories about the stairway’s safety-device function and the adequacy of protective measures (with the court also policing appellate “issue creation” that could prejudice the parties). Second, it strengthens owners’ ability to obtain summary judgment contractual indemnification under broad “arising out of” clauses where the injury ties back to the subcontractor’s work and the owner’s own negligence/§ 200 exposure has been dismissed.