Municipal Emergency Demolition Oversight as a Proprietary Function: No Governmental-Function Immunity, and Contractual Control Can Create Labor Law § 241(6) Exposure

1. Introduction

Fahey v Worship House & Outreach Ministries, Inc. (2026 NY Slip Op 03426) arises from an emergency demolition in Brooklyn ordered after the New York City Department of Buildings (“DOB”) issued emergency declarations for two abutting buildings on the same lot. After the owner, Worship House & Outreach Ministries, Inc., allegedly failed to remediate, the City—through the New York City Department of Housing Preservation and Development (“HPD”)—contracted with Shoe Box City, Inc. (“Shoe Box”) to perform the demolition.

The plaintiff, an employee of Shoe Box, claimed he was injured when a hand-held power saw malfunctioned while he was cutting planks of wood during the demolition. He sued, among others, the City-related entities (collectively, the “City defendants”), asserting Labor Law claims under §§ 200, 240(1), and 241(6), including § 241(6) predicates under 12 NYCRR 23-1.5(c)(3) and 23-1.12(c)(1).

The appeal addressed two core questions: (i) whether the City defendants could obtain dismissal (or be held liable) under Labor Law § 241(6) based on their degree of supervisory control and related defenses; and (ii) whether the plaintiff’s saw-malfunction injury implicated the “elevation-related” hazards required for Labor Law § 240(1).

2. Summary of the Opinion

The Appellate Division, Second Department modified the Supreme Court’s order.

  • Labor Law § 241(6) (Industrial Code predicates): The court affirmed denial of the plaintiff’s motion for summary judgment on liability because factual issues remained as to whether the City defendants had sufficient supervisory control to qualify as an owner/contractor/agent for § 241(6) purposes. However, it reversed in part the dismissal of that § 241(6) theory against the City defendants, holding that (a) the City defendants did not establish governmental function immunity, and (b) the plaintiff raised a triable issue—particularly through the City–Shoe Box contract—about the City’s authority to supervise/control the work.
  • Labor Law § 240(1): The court affirmed dismissal because the plaintiff’s injury from a power saw malfunction was not an elevation-related hazard within the statute’s narrow scope.
  • Labor Law § 200: Dismissal was affirmed because the plaintiff abandoned any appellate argument on that claim.

3. Analysis

A. Precedents Cited

1) The Labor Law “agent/supervisory control” framework

The court reiterated the standard that Labor Law § 240(1) and § 241(6) impose “nondelegable” duties on owners, contractors, and their agents, citing: Novegil-Peralta v Rettig (nondelegable duty under § 240(1)) and Moscati v Consolidated Edison Co. of N.Y., Inc. (nondelegable duty under § 241(6)), as well as Southerton v City of New York for the proposition that these statutes permit liability to be imposed on owners/contractors/agents.

On who qualifies as an “agent,” the court leaned heavily on Southerton v City of New York, Novegil-Peralta v Rettig, and Fiore v Westerman Constr. Co., Inc.:

  • An entity is an “agent” when it has “supervisory control and authority over the work being done where a plaintiff is injured” (Southerton v City of New York).
  • Liability turns on having “the authority to control the activity bringing about the injury” (Southerton v City of New York), and the key is “the right to exercise control,” not actual exercise (Fiore v Westerman Constr. Co., Inc.).

Those standards framed both sides of the § 241(6) dispute: the plaintiff’s inability to win summary judgment (he did not eliminate factual disputes about City control) and the City defendants’ inability to obtain dismissal (because the contract evidence could show a right of control).

2) Summary judgment burdens

For the plaintiff’s failed attempt to obtain summary judgment on liability, the court cited Winegrad v New York Univ. Med. Ctr. to emphasize that if the movant fails to make a prima facie showing, the motion is denied “without regard to the sufficiency of” opposition.

3) Governmental function immunity vs proprietary capacity

A central holding is the rejection (on this record) of the City defendants’ governmental function immunity argument. The court invoked: Cappiello v City of Glen Cove (quoting Ferreira v City of Binghamton) for the general rule that discretionary acts in the performance of governmental functions can be immune; and Grasso v New York State Thruway Auth. for the key distinction that proprietary functions are judged under ordinary tort principles.

Critically, the court applied the “specific act” test from Grasso v New York State Thruway Auth. (quoting Matter of World Trade Ctr. Bombing Litig.): the inquiry focuses on “the specific act or omission out of which the injury is claimed to have arisen” and the capacity in which it occurred.

Using that lens, the court held that the alleged injury-causing “specific act” was the City defendants’ “supervision of, and involvement in, the demolition work,” and that in doing so the City defendants were acting in a proprietary capacity. The court supported that characterization with Iacampo v State of New York and distinguished/contrasted cases such as Cappiello v City of Glen Cove and Trenholm-Owens v City of Yonkers.

4) The narrow scope of Labor Law § 240(1)

To affirm dismissal of § 240(1), the court relied on the settled elevation-differential doctrine: Canales v Rye Neck Union Free Sch. Dist. and Ross v Curtis- Palmer Hydro-Elec. Co. for the principle that § 240(1) covers a “narrow class of dangers,” and Nicometi v Vineyards of Fredonia, LLC (along with Eddy v John Hummel Custom Bldrs., Inc.) for the requirement that injury be a “direct consequence” of failure to protect against a “physically significant elevation differential.” The court also cited Sullivan v New York Athletic Club of City of N.Y. and Sheng Hai Tong v K & K 7619, Inc. in applying those principles to conclude the saw-malfunction injury was not elevation-related.

5) Appellate abandonment

The court cited Nooney v Queensborough Pub. Lib. and Lupo v Miranda to apply the rule that claims not meaningfully argued in the appellant’s brief are treated as abandoned—here, the Labor Law § 200 theory.

B. Legal Reasoning

1) Why the plaintiff could not win summary judgment on § 241(6)

Even though Labor Law § 241(6) imposes a nondelegable duty, that duty runs against “owners and general contractors, and their agents.” The plaintiff, as the movant, had to establish as a matter of law that the City defendants fell into one of those categories for purposes of the demolition work and the alleged Industrial Code violations. The court held he did not eliminate factual disputes on whether the City had “a sufficient degree of supervision or control over the means and methods of the demolition work.”

The court’s reasoning is doctrinally consistent with the “right to control” test: if the record does not conclusively show that right (or its scope), a court cannot declare Labor Law agency status as a matter of law.

2) Why the City defendants could not obtain dismissal of the § 241(6) predicates

The City defendants sought dismissal in two moves: (i) immunity; and (ii) lack of the requisite supervisory control.

(i) Immunity failed: The court treated the relevant conduct—supervision/involvement in demolition—as proprietary under the “specific act” test. As a result, the City defendants were not “shielded” by governmental function immunity on this record.

(ii) Dismissal on the merits failed because of contract evidence: The City defendants did make a prima facie showing of only “general supervisory authority to oversee the progress of the work.” But the plaintiff countered with the City–Shoe Box contract suggesting the City defendants had authority to “exercise supervision and control over the work.” Under the “right to control” standard, that contract created a triable issue of fact, requiring denial of summary judgment dismissal on those § 241(6) predicates.

This aspect of the decision underscores that, in Labor Law litigation, “control” is often proven (or disputed) not only through on-site practices, but through written allocations of authority in project contracts—especially where the defendant contends its role was merely observational.

3) Why § 240(1) was dismissed

The plaintiff’s injury mechanism (a hand-held power saw malfunction while cutting wood) did not involve a gravity-related risk arising from an elevation differential. Applying Nicometi v Vineyards of Fredonia, LLC and related authority, the court held the City defendants demonstrated the absence of an elevation-related hazard, and the plaintiff failed to raise a factual issue in response.

C. Impact

  • Municipal defendants in emergency work are not automatically immune: When a plaintiff’s alleged harm arises from a municipality’s supervision/involvement in contracted construction-type work, courts may characterize that “specific act” as proprietary, limiting the availability of governmental function immunity.
  • Contracts can defeat “general supervision only” defenses: Even if deposition testimony suggests the municipality only monitored progress, contractual terms indicating a right to direct, supervise, or control may create triable issues of fact and prevent dismissal under Labor Law § 241(6).
  • § 240(1) remains tightly cabined: Injuries from tool malfunctions during demolition—even on an “emergency” job—will not fit § 240(1) unless tied to an elevation-related, gravity-driven risk.
  • Litigation practice note: The decision highlights the appellate consequence of inadequate briefing: a Labor Law § 200 claim can be effectively lost by abandonment on appeal.

4. Complex Concepts Simplified

  • Labor Law § 241(6): Requires compliance with specific Industrial Code rules. Liability can attach to owners/contractors/agents even if they did not personally create the hazard, but the defendant must be within the statute’s covered categories.
  • Industrial Code predicates (12 NYCRR): The specific regulations a plaintiff claims were violated; they function like the “concrete safety rules” needed to support § 241(6) liability.
  • “Nondelegable duty”: A duty that cannot be avoided by hiring someone else. The defendant may still be liable even if a contractor performed the work.
  • “Agent” under the Labor Law: Not a formal title; it is about whether the defendant had the right to control the injury-producing work.
  • Governmental function immunity vs proprietary function: If the government is performing a discretionary governmental function (like policing), immunity may apply. If it is acting like a private entity (a “proprietary” role, such as managing or supervising contracted work in a manner akin to a private owner), it is generally judged under ordinary tort principles.
  • Labor Law § 240(1) “elevation differential”: The statute targets gravity-related risks (falls, falling objects) tied to significant height differences—not every workplace injury.
  • Summary judgment: A pretrial ruling that can be granted only when no material facts are genuinely disputed; contract language can create such disputes even if witnesses describe limited on-site involvement.

5. Conclusion

Fahey v Worship House & Outreach Ministries, Inc. reinforces two practical rules in New York Labor Law litigation involving municipal defendants: (1) when the “specific act” alleged is a municipality’s supervision/involvement in demolition work, the municipality may be acting in a proprietary capacity and thus may not obtain governmental function immunity; and (2) even where testimony suggests only general oversight, contractual authority to supervise/control can create triable issues that keep Labor Law § 241(6) claims alive. At the same time, the decision reaffirms that tool-malfunction injuries untethered to elevation hazards do not fall within Labor Law § 240(1)’s narrow scope.