Skid-Steer Step Slip Falls: No Labor Law § 240(1) Elevation Hazard and No 12 NYCRR 23-1.7(d) “Working Surface”; 12 NYCRR 23-1.30 Lighting Claim May Proceed

1. Introduction

Digangi v New York City Sch. Constr. Auth. (2026 NY Slip Op 05162 [2d Dept Sept. 2, 2026]) arises from a February 2021 workplace accident at a Brooklyn construction site owned by the New York City School Construction Authority (SCA), with the City of New York also sued. The plaintiff, Giuseppe Digangi, testified that he slipped on ice on a step while exiting the cockpit of a compact track loader (“skidsteer”) and fell about three feet to the ground.

The litigation presented familiar New York construction-accident issues: (i) whether the accident involved an elevation-related hazard triggering Labor Law § 240(1); (ii) whether the icy condition supported Labor Law § 200 and common-law negligence (including the storm in progress defense); and (iii) which, if any, pleaded Industrial Code provisions could sustain a Labor Law § 241(6) claim.

2. Summary of the Opinion

The Second Department modified the Supreme Court’s order. It affirmed the denial of summary judgment dismissing the Labor Law § 200 and common-law negligence claims, holding defendants failed to eliminate triable issues about notice and the storm-in-progress doctrine. It also affirmed dismissal of the Labor Law § 240(1) claim, concluding the three-foot descent from a skidsteer step was not an elevation-related risk within the statute.

On Labor Law § 241(6), the court held:

  • The § 241(6) claim may proceed only insofar as it is predicated on 12 NYCRR 23-1.30 (illumination), because neither side eliminated fact issues on compliance and proximate cause.
  • The § 241(6) claim predicated on 12 NYCRR 23-1.7(d) was dismissed because a skidsteer step is not a “floor, passageway, walkway, scaffold, platform or other elevated working surface” under that regulation.
  • The court also dismissed § 241(6) theories based on other Industrial Code provisions and OSHA regulations due to abandonment (failure to address them) and because OSHA standards do not supply § 241(6) predicates.

3. Analysis

A. Precedents Cited

1) Labor Law § 200 / Common-Law Negligence: Notice and Storm-in-Progress

  • Freyberg v Adelphi Univ. and Agosto v Museum of Modern Art: Cited for the baseline principle that Labor Law § 200 codifies the common-law duty to provide a safe workplace, and that premises-condition cases focus on creation of the condition or notice.
  • Cagua v Bushwick Holdings, LLC and Walsh v Kenny: Reinforce the two notice paths—actual or constructive notice—when the claim turns on a dangerous premises condition.
  • Bonkoski v Condos Bros. Constr. Corp.: Used to articulate constructive notice as requiring a visible/apparent condition existing long enough for discovery and remedy.
  • James v Highland Rehabilitation & Nursing Ctr., Licari v Brookside Meadows, LLC, and Fenner v 1011 Rte. 109 Corp.: Provide the controlling storm-in-progress framework, including the “lull” concept—an owner may wait out a continuing storm, but the rationale weakens once precipitation tails off such that appreciable accumulation is no longer occurring. Here, Fenner v 1011 Rte. 109 Corp. also anchored the court’s point that, without reliable proof (e.g., weather data), defendants may fail to establish the defense as a matter of law.
  • Toalongo v Almarwa Ctr., Inc. and Moscati v Consolidated Edison Co. of N.Y., Inc.: Cited to support the conclusion that defendants did not establish, prima facie, a lack of awareness of the condition in the work area.
  • Gardell v Arden Ave. Homeowners Assn. and Steele v Samaritan Found., Inc.: Used to reject the argument that the plaintiff’s failure to see the ice necessarily makes causation speculative.
  • Winegrad v New York Univ. Med. Ctr.: Supplies the procedural rule that if a movant fails to meet its prima facie burden on summary judgment, the motion is denied regardless of the opponent’s papers—supporting affirmance on § 200 and negligence.

2) Labor Law § 240(1): Elevation-Related Risk Narrowness

  • Reyes v Astoria 31st St. Devs., LLC and Flores v Fort Green Homes, LLC: Cited for the nondelegable-duty framing and the statute’s purpose—requiring proper safety devices against elevated-worksite hazards.
  • Canales v Rye Neck Union Free Sch. Dist. and Giraldo v Highmark Ind., LLC: Emphasize that § 240(1) is limited to a “narrow class of dangers.”
  • Nicometi v Vineyards of Fredonia, LLC: Provides the controlling test: the injury must be the direct consequence of failure to protect against a risk from a physically significant elevation differential.
  • Ortega v Fourtrax Contr. Corp. and Christie v Live Nation Concerts, Inc.: Reinforce that § 240(1) is not triggered by every gravity-related mishap.
  • Toefer v Long Is. R.R. and Bond v York Hunter Constr.: These cases do the heavy lifting in the court’s ultimate conclusion: an approximate three-foot descent from equipment/vehicle-related access points to the ground is not, without more, the kind of elevation hazard § 240(1) targets. The court applied them to hold § 240(1) inapplicable to a skidsteer-step slip-and-fall.

3) Labor Law § 241(6): Proper Industrial Code Predicate, Abandonment, and OSHA

  • Cruz v 451 Lexington Realty, LLC and Guaman v 178 Ct. St., LLC: State the core § 241(6) requirement—plaintiff must show proximate cause from violation of an applicable, sufficiently specific Industrial Code provision.
  • Araujo v Monadnock Constr., Inc. and Murphy v 80 Pine, LLC: Explain what 12 NYCRR 23-1.30 demands (adequate illumination; minimum foot-candle levels) and why it can be a viable § 241(6) predicate.
  • Fedrich v Granite Bldg. 2, LLC and Lucas v KD Dev. Constr. Corp.: Cited generally to support that lighting compliance and causation are often fact-bound, justifying denial of summary judgment where the record is contested.
  • Bond v York Hunter Constr. (270 AD2d 112, affd 95 NY2d 883) and Canales v Rye Neck Union Free Sch. Dist.: Used to conclude that 12 NYCRR 23-1.7(d) (slipping hazards on specified “surfaces”) does not apply because a skidsteer step is not a listed/covered “floor, passageway, walkway, scaffold, platform or other elevated working surface.”
  • Rivas v Purvis Holdings, LLC and Palomeque v Capital Improvement Servs., LLC: Establish the abandonment doctrine applied here—Industrial Code provisions not addressed in opposition papers or appellate briefing are treated as abandoned.
  • Wetter v Northville Indus. Corp. and Greenwood v Shearson, Lehman & Hutton: Confirm that OSHA regulations (here, 29 CFR part 1926) cannot supply a predicate for § 241(6) liability.

B. Legal Reasoning

1) Why the § 200 / Negligence Claims Survived Summary Judgment

The defendants attempted to defeat liability through the storm-in-progress rule and lack of notice. The appellate court held they did not carry their prima facie burden—critically noting the absence of climatological data and the inability to pinpoint whether/when the storm ceased relative to the accident. Without such proof, defendants could not establish, as a matter of law, that they had no duty to remediate at the time.

Separately, the record did not eliminate factual disputes about whether defendants had actual or constructive notice of the icy step. The court also rejected arguments that causation was speculative merely because the plaintiff did not see the ice before falling.

2) Why the § 240(1) Claim Was Dismissed

The court treated the case as a routine slip-and-fall from a modest height associated with entering/exiting equipment, not a failure to provide enumerated elevation safety devices (e.g., scaffold/hoist/ladder protection) against a special elevation hazard. Applying Toefer v Long Is. R.R. and Bond v York Hunter Constr., it held the approximate three-foot drop from the skidsteer step to ground did not qualify as a § 240(1) elevation-related risk. As a result, defendants were entitled to summary judgment dismissing § 240(1), and the plaintiff was not entitled to summary judgment on liability.

3) Why Only the § 241(6) Lighting Theory (12 NYCRR 23-1.30) Remained

The plaintiff pursued § 241(6) primarily through two provisions: the slipping-hazard rule (12 NYCRR 23-1.7(d)) and the illumination rule (12 NYCRR 23-1.30). The court split them:

  • 12 NYCRR 23-1.30 (illumination): The record left fact questions about whether lighting met required levels and whether any deficiency contributed to the fall; thus neither side won summary judgment.
  • 12 NYCRR 23-1.7(d) (slipping hazards on specified surfaces): The regulation did not fit because the alleged hazard was on a skidsteer step—outside the regulation’s defined/understood set of protected surfaces—so the theory failed as a matter of law.

The court further narrowed the case by applying two limiting doctrines: (i) abandonment—unaddressed Industrial Code provisions are treated as dropped; and (ii) OSHA non-predicate—OSHA regulations cannot serve as a basis for § 241(6) liability. The resulting modification dismissed § 241(6) predicates under 12 NYCRR 23-1.5, 23-1.7, and 23-2.1 to 23-2.3, and 29 CFR part 1926, leaving only the 12 NYCRR 23-1.30 theory.

C. Impact

  • Equipment-access falls remain difficult § 240(1) cases: This decision reinforces that ordinary entry/exit from construction equipment—at heights around a few feet—will often be treated as outside § 240(1), absent a true elevation-device failure tied to a special hazard.
  • Targeted pleading and motion practice under § 241(6): The opinion is a cautionary example that plaintiffs must actively defend each pleaded Industrial Code predicate in motion papers and on appeal, or risk abandonment. Defendants, conversely, can narrow cases substantially by pressing (a) inapplicability and (b) abandonment.
  • Lighting claims may be the “survivor” in icy/fall cases: Where the immediate hazard is ice but the plaintiff also alleges inadequate lighting, 12 NYCRR 23-1.30 can keep § 241(6) in the case if factual disputes exist.
  • Storm-in-progress requires proof: The decision underscores that defendants should marshal weather records/data and a time-sequenced narrative; otherwise summary judgment on storm-in-progress and notice may fail.
  • OSHA remains off-limits for § 241(6): The ruling reiterates the settled barrier to using OSHA as a § 241(6) predicate, steering litigants back to the Industrial Code.

4. Complex Concepts Simplified

  • Summary judgment: A pretrial ruling granted only if there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law. If the movant fails to make the required initial showing, the motion is denied.
  • Labor Law § 200: New York’s statutory expression of the common-law duty to provide a safe workplace. For premises hazards, liability often turns on whether the defendant created the condition or had actual/constructive notice of it.
  • Constructive notice: The law treats a defendant as having notice if the condition was visible and apparent for long enough that it should have been discovered and corrected.
  • Storm in progress rule: Owners are generally not required to remove snow/ice while a storm is ongoing (and for a reasonable time afterward), but a genuine lull/ending may restore the duty to remedy depending on facts and timing.
  • Labor Law § 240(1): The “Scaffold Law,” imposing strict/nondelegable duties for certain elevation-related hazards. It is not triggered by every fall; it focuses on special elevation risks requiring safety devices.
  • Labor Law § 241(6): Imposes a nondelegable duty to comply with specific Industrial Code safety rules. A plaintiff must identify an applicable, specific rule, show it was violated, and show the violation was a proximate cause of the injury.
  • Abandonment (in this context): If a party does not argue a pleaded regulation in opposition papers or on appeal, courts may deem that theory abandoned.

5. Conclusion

Digangi refines the boundaries of New York construction-accident liability in an equipment-access slip scenario. The court held that a three-foot fall from a skidsteer step does not present the kind of elevation-related hazard covered by Labor Law § 240(1), and that 12 NYCRR 23-1.7(d) does not apply because a skidsteer step is not a covered working surface. At the same time, it preserved potential liability under Labor Law § 200 and negligence due to unresolved issues of notice and storm timing, and allowed a narrow Labor Law § 241(6) claim to proceed solely under 12 NYCRR 23-1.30 (illumination).

The decision’s practical lesson is twofold: defendants should support storm-in-progress and notice defenses with concrete weather and timing proof, and both sides should expect § 241(6) claims to be pared down to only those Industrial Code provisions that are (1) applicable, (2) preserved, and (3) factually supported.