Stored Construction Materials and Falling Objects Under New York Labor Law: Commentary on Guacho v. DLV Empire, LLC

I. Introduction

The Appellate Division, Second Department’s decision in Guacho v. DLV Empire, LLC, 2025 NY Slip Op 06999 (Dec. 17, 2025), is a significant clarification in two recurring areas of New York construction accident litigation:

• the limits of “falling object” liability under Labor Law § 240(1), and
• the scope of the “safe storage of materials” regulation, 12 NYCRR 23-2.1(a)(1), under Labor Law § 241(6).

The decision also reinforces important procedural principles regarding summary judgment burdens and highlights unresolved factual issues concerning who qualifies as a “contractor” or “general contractor” for purposes of Labor Law §§ 240(1) and 241(6).

The case arises from an accident involving an elevator installation worker injured when a boxed elevator door — stored upright on a small amount of debris — toppled over and fractured his leg. At stake were multiple Labor Law causes of action and common-law negligence claims against Kader Elite Construction, Inc. (“Kader”), which had a construction contract with the owner, DLV Empire, LLC (“DLV”). The plaintiff, Manuel Jesus Tene Guacho, worked for a separate entity, Aaron S. Construction Corp. (“Aaron”), hired specifically to install the elevators.

On appeal from the Supreme Court, Kings County (Sheares, J.), the Second Department:

• confirmed the dismissal of the plaintiff’s Labor Law § 240(1) claim against Kader,
• revived his Labor Law § 241(6) claim premised on 12 NYCRR 23-2.1(a)(1), and
• left intact the unchallenged dismissal of common-law negligence and Labor Law § 200 claims.

II. Summary of the Opinion

The Appellate Division modified the lower court’s order in a limited but strategically important way:

1. Labor Law § 240(1) (“Scaffold Law”) – Claim Dismissed Against Kader
   The court held that the plaintiff’s accident did not fall within the “falling object” protections of Labor Law § 240(1). The boxed elevator door was not being hoisted or secured, did not require securing for the purposes of the work in the sense contemplated by § 240(1), and did not fall because of the absence or inadequacy of a statutory safety device. On this alternative ground, Kader was entitled to summary judgment dismissing the § 240(1) claim, even though factual issues remained concerning its status as a “contractor.”
2. Labor Law § 241(6) – Claim Based on 12 NYCRR 23-2.1(a)(1) Reinstated
   The plaintiff predicated part of his § 241(6) claim on an alleged violation of 12 NYCRR 23-2.1(a)(1), which governs safe and orderly storage of building materials. The Supreme Court had granted Kader summary judgment on this claim. The Appellate Division reversed that aspect, holding that Kader failed to make a prima facie showing that it complied with the regulation or that the regulation was inapplicable. It stressed that the regulation’s “safe and orderly” storage requirement applies even in open areas, independent of whether materials obstruct a walkway or passageway. Accordingly, this portion of the § 241(6) claim survives against Kader.
3. General Contractor / Contractor Status – Unresolved Factual Issue
   The court held that neither side was entitled to summary judgment on the question whether Kader was a general contractor, or otherwise a contractor subject to duties under §§ 240(1) and 241(6), with respect to the plaintiff’s work. There were triable issues as to whether Kader and Aaron acted as separate prime contractors, and whether Kader’s role in Aaron’s hiring was sufficient to impose Labor Law liability.
4. Labor Law § 200 and Common-Law Negligence – Waiver on Appeal
   The plaintiff had not opposed Kader’s summary judgment motion on his § 200 and common-law negligence claims. The Appellate Division therefore refused to consider these issues, deeming them unpreserved for appellate review.

Net result: Kader is out of the case on § 240(1), but remains in as a potential Labor Law § 241(6) defendant based on alleged unsafe storage of the boxed elevator door. Issues about whether Kader is a proper Labor Law “contractor” remain for trial or further proceedings.

III. Factual and Procedural Background

A. Construction Arrangement and Roles

• Owner: DLV Empire, LLC (“DLV”), owner of the premises where a new home was being built.
• Construction contractor: Kader Elite Construction, Inc. (“Kader”), which entered into a contract with DLV “for the construction of a new home on DLV’s property.”
• Elevator contractor: Aaron S. Construction Corp. (“Aaron”), hired to install elevators in the home.
• Plaintiff: Manuel Jesus Tene Guacho, an employee of Aaron, working on the elevator installation.

B. The Accident

The plaintiff alleged that while he was performing elevator installation work, he approached a “four-foot by eight-foot box containing an elevator door.” According to his testimony, the box had been left standing on “a little bit of garbage.” Before he or his co-worker touched it, the box fell over, pinning his leg and causing a fracture.

The essential factual elements:

• The elevator door was in a box measuring approximately 4’ x 8’.
• The box was upright, resting on debris (“a little bit of garbage”).
• The plaintiff and his partner approached but had not yet handled or moved it.
• The box toppled over spontaneously and injured the plaintiff’s leg.

C. Claims and Motions in the Supreme Court

The plaintiff sued Kader and others, asserting:

• common-law negligence,
• Labor Law § 200 (codifying a common-law duty regarding workplace safety),
• Labor Law § 240(1) (“Scaffold Law”), and
• Labor Law § 241(6), premised in part on 12 NYCRR 23-2.1(a)(1).

After discovery:

• Kader’s motion: Kader moved, inter alia, for summary judgment dismissing the complaint as against it, including the Labor Law §§ 240(1) and 241(6) claims.
• Plaintiff’s cross-motion: The plaintiff moved for summary judgment on liability on:
  • his Labor Law § 240(1) cause of action, and
  • so much of his Labor Law § 241(6) cause of action as relied on 12 NYCRR 23-2.1(a)(1), insofar as asserted against Kader.

The Supreme Court (Sheares, J.) granted Kader’s motion for summary judgment dismissing the complaint as against it, and denied the plaintiff’s cross-motion. The plaintiff appealed from the adverse portions of that order.

IV. Precedents and Doctrinal Context

A. Nondelegable Duties Under Labor Law §§ 240(1) and 241(6)

The court began by restating core principles governing New York’s construction safety statutes:

• Labor Law § 240(1) imposes a nondelegable duty on “owners, contractors, or their agents” to provide “proper protection” for workers engaged in certain enumerated construction activities (Aversano v JWH Contr., LLC, 37 AD3d 745, 746; Londono v Dalen, LLC, 204 AD3d 658, 659). “Nondelegable” means that the duty cannot be shifted to another party by contract; an owner or contractor can still be held liable even if it engaged a separate entity to perform the work.
• Labor Law § 241(6), “by its very terms, imposes a nondelegable duty of reasonable care upon owners and contractors ‘to provide reasonable and adequate protection and safety’” to persons employed or lawfully present in areas where construction, excavation, or demolition is being performed (Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 348, quoting the statute). Section 241(6) is typically enforced via proof that a specific, applicable Industrial Code provision was violated.

Both statutes create duties that, if breached and causally connected to an injury, can result in liability regardless of whether the owner or contractor directly controlled the plaintiff’s day-to-day work. But liability depends on threshold questions: whether the defendant falls within the class of protected “owners, contractors, or their agents,” and, for § 241(6), whether a concrete Industrial Code regulation applies and was violated.

B. Contractor / General Contractor Status

The decision draws on a line of cases defining when an entity qualifies as a “contractor” or “general contractor” for purposes of Labor Law liability.

The Appellate Division quoted Valdez v Turner Constr. Co., 171 AD3d 836, 839, which in turn quoted Kulaszewski v Clinton Disposal Servs., 272 AD2d 855, 856:

A contractor is subject to liability under Labor Law §§ 240(1) and 241(6) where the contractor is “responsible for coordinating and supervising the entire construction project and [is] invested with a concomitant power to enforce safety standards and to hire responsible contractors.”

Other cited cases situate Guacho in this doctrinal context:

• Mora v Nakash, 118 AD3d 964, 966 – referenced for the proposition that factual issues can arise as to whether entities are separate prime contractors, or whether one had sufficient control or involvement in another’s hiring to attract Labor Law liability.
• Delaluz v Walsh, 228 AD3d 619, 622 (cited “cf.”) – used as a contrast case, likely involving a clearer finding one way or the other on the contractor status issue.

Thus, the court’s approach is consistent with established precedent: contractor liability hinges on the entity’s role in coordinating work, enforcing safety, and retaining authority over hiring and supervising contractors, not merely its label or contractual designation.

C. Scope of Labor Law § 240(1) in Falling Object Cases

The court’s analysis of § 240(1) is grounded in leading Court of Appeals precedent:

• Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494 – established that § 240(1) covers a “narrow class of special hazards” related to elevation differentials, and does not encompass every risk tangentially associated with the effects of gravity.
• Nieves v Five Boro A.C. & Refrig. Corp., 93 NY2d 914, 915–16 – reiterated that the statute’s “extraordinary protections” do not extend to all gravity-related perils; instead, they address specific elevation-related risks.

For falling object cases, the Appellate Division relied on its own recent precedents:

• Rzepka v City of New York, 227 AD3d 922, 923 – to prevail under § 240(1) in a falling object scenario, a plaintiff must show: (1) a hazard of the type contemplated by the statute; and (2) that the injury was caused by the failure to use, or inadequacy of, an enumerated safety device. This in turn requires showing that, at the time the object fell, it was being hoisted or secured, or required securing for the purposes of the undertaking.
• Ruiz v Ford, 160 AD3d 1001, 1003 and Carranza v JCL Homes, Inc., 210 AD3d 858, 859 – reinforcing the same doctrinal requirements.
• Parrino v Rauert, 208 AD3d 672, 673–74 and Gurewitz v City of New York, 175 AD3d 658, 660–61, 663 – both cited for circumstances in which a falling object was found not to implicate § 240(1) where it was not being hoisted or secured, and no enumerated safety device was required for the task at hand.

The core principle: § 240(1) is not triggered merely because something heavy falls and injures a worker. The object must fall from a height or under circumstances that call for a protective device specifically contemplated by the statute.

D. 12 NYCRR 23-2.1(a)(1): Safe Storage of Building Materials

The surviving Labor Law § 241(6) claim is premised on 12 NYCRR 23-2.1(a)(1), which provides:

All building materials shall be stored in a safe and orderly manner. Material piles shall be stable under all conditions and so located that they do not obstruct any passageway, walkway, stairway or other thoroughfare.

The decision situates its reading of this regulation within established case law:

• Castillo v Starrett City, 4 AD3d 320, 321 – cited for articulating the rule that this regulation:
  • requires building materials to be stored in a safe and orderly manner, and
  • requires material piles to be stable and to avoid obstructing passageways, walkways, stairways, or other thoroughfares.
  This case is a key reference for the dual aspects of the regulation.
• Slowe v Lecesse Constr. Servs., LLC, 192 AD3d 1645, 1646; Zamajtys v Cholewa, 84 AD3d 1360, 1362; Aragona v State of New York, 74 AD3d 1260, 1262; Rodriguez v DRLD Dev., Corp., 109 AD3d 409, 410 – cited for applications of 23-2.1(a)(1) and its reach in cases involving stored materials, stacked or piled items, and placement in various locations on a construction site.
• Parrino v Rauert, 208 AD3d 672, 675; Costa v State of New York, 123 AD3d 648, 649 – confirming that whether materials were stored “in a safe and orderly manner” is frequently a triable question of fact not amenable to summary judgment.
• Cody v State of New York, 82 AD3d 925, 928 – important as a limiting case: there, 23-2.1(a)(1) was held inapplicable where, among other things, “the material that caused the claimant to fall was not being stored but was in use.” Guacho distinguishes this line by emphasizing that the elevator door box here was allegedly stored, not in active use.

A crucial doctrinal point—made explicit in Guacho—is that the regulation imposes two separate obligations:

1. a broad requirement that “[a]ll building materials shall be stored in a safe and orderly manner”, and
2. a more specific requirement that “material piles” be stable and non-obstructive of thoroughfares.

Guacho emphasizes that the first obligation stands on its own and is not limited to passageway obstructions. This is central to the court’s decision allowing the § 241(6) claim to proceed.

E. Summary Judgment Standards and Preservation of Issues

The court repeatedly invoked Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853, for the well-known proposition that:

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law. Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers.

This principle appears in two key parts of the decision:

• To affirm the denial of the plaintiff’s motion for summary judgment on §§ 240(1) and 241(6) claims against Kader, regardless of Kader’s opposing papers, because the plaintiff failed to eliminate triable issues of fact as to Kader’s contractor status.
• To reverse the grant of summary judgment to Kader on the § 241(6)/23-2.1(a)(1) claim because Kader failed to establish prima facie that it was entitled to dismissal, again regardless of the content of the plaintiff’s opposition.

On appellate preservation, the court cited:

• Jaimes-Gutierrez v 37 Raywood Dr., LLC, 233 AD3d 761, 763; Nooney v Queensborough Pub. Lib., 212 AD3d 830, 833 – for the principle that issues not raised in opposition to a summary judgment motion in the trial court cannot be raised for the first time on appeal. That rule disposes of the plaintiff’s belated arguments regarding his Labor Law § 200 and common-law negligence claims.

V. The Court’s Legal Reasoning in Guacho

A. Contractor Status: Was Kader a “Contractor” for Labor Law Purposes?

Before either Labor Law § 240(1) or § 241(6) can attach, the defendant must fit within the statute’s class of “owners, contractors, or their agents.” The court focused on Kader’s status vis-à-vis:

• the overall construction project (new home construction), and
• the specific elevator installation work in which the plaintiff was engaged.

The test, drawn from Valdez and Kulaszewski, is whether Kader was:

• responsible for coordinating and supervising the entire construction project, and
• invested with the power to enforce safety standards and to hire responsible contractors.

The court concluded:

• As to the plaintiff’s motion: The plaintiff failed to eliminate triable issues of fact on whether Kader was a general contractor with respect to his work. Specifically, the record left open:
  • whether Kader and Aaron were separate prime contractors, each directly contracted with the owner for different aspects of the work, or
  • whether Kader had sufficient involvement in Aaron’s hiring and supervision to be considered a contractor or agent for Labor Law purposes.
  Because the plaintiff did not carry his initial summary judgment burden on contractor status, his requests for summary judgment on §§ 240(1) and 241(6) liability were properly denied, regardless of Kader’s opposition papers (Winegrad).
• As to Kader’s motion: Kader likewise failed to make a prima facie showing that it was not a contractor subject to Labor Law liability. The same unresolved factual issues—about role, coordination, and power over safety and hiring—prevented summary judgment in Kader’s favor on that ground.

The court thus leaves contractor status as a fact question for future proceedings, but resolves the claims on other grounds where possible (most notably § 240(1)).

B. Labor Law § 240(1): Why the Falling Elevator Door Box Is Not Covered

Despite the unresolved contractor-status question, the court affirmed dismissal of the § 240(1) claim against Kader on an alternative ground: the accident does not fall within the scope of § 240(1).

Applying the Court of Appeals’ “special hazards” doctrine from Ross and Nieves, and the Second Department’s own jurisprudence on falling objects:

• § 240(1) protects against elevation-related risks requiring statutorily enumerated devices (scaffolds, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, etc.).
• In a falling-object case, a plaintiff must show:
  • that the object was being hoisted or secured, or required securing for the purposes of the work, and
  • that the absence or inadequacy of a § 240(1) device was a proximate cause of the fall.

Kader met its prima facie burden by showing, through the plaintiff’s own deposition testimony, that:

• the elevator door box was not being hoisted or secured at the time of the accident,
• it was simply standing upright, resting on “a little bit of garbage,”
• the plaintiff and co-worker had not yet touched or attempted to move it, and
• the box’s fall was not attributable to the absence or inadequacy of any safety device enumerated in § 240(1).

The court held that this scenario does not trigger the “extraordinary protections” of § 240(1):

[T]he box that fell on the plaintiff, which, according to the plaintiff’s deposition testimony, he and his partner had approached but had not touched at the time it fell, was not a load that was being hoisted or secured, or required securing for purposes of the undertaking, and [the record showed] that the box did not fall because of the absence or inadequacy of a safety device.

In opposition, the plaintiff failed to raise a triable issue of fact. Thus, even though contractor status remains unresolved, the court could and did dismiss the § 240(1) claim on the more fundamental ground that the statute simply does not reach this type of stored-object accident.

C. Labor Law § 241(6) and 12 NYCRR 23-2.1(a)(1): Why the Claim Survives

The more nuanced part of the decision concerns the plaintiff’s § 241(6) claim predicated on 12 NYCRR 23-2.1(a)(1). The focus here is on material storage at the construction site.

The court first reaffirms that § 241(6) imposes a nondelegable duty on owners and contractors to provide “reasonable and adequate protection and safety” in construction areas, enforced through specific Industrial Code regulations like 23-2.1(a)(1) (Rizzuto).

Kader sought summary judgment dismissing the § 241(6) claim, arguing essentially that 23-2.1(a)(1) did not apply or was not violated. However, the court held that Kader failed to establish prima facie entitlement to judgment as a matter of law:

• Even if the plaintiff’s accident occurred in an open area, this does not automatically remove it from the scope of 23-2.1(a)(1). The plaintiff alleged that the elevator door box (a “building material”) was not stored in a “safe and orderly manner,” consistent with the regulation’s first clause.
• The fact that the plaintiff did not allege the material obstructed a passageway, walkway, stairway, or thoroughfare is not fatal. The regulation contains two independent requirements:
  • safe and orderly storage of all building materials, and
  • stable, non-obstructive material piles.
  The plaintiff relies on the first; he need not show the second.

The Appellate Division accordingly framed the issue this way:

Here, even if the plaintiff’s accident occurred in an open area, the plaintiff alleged, among other things, that “building materials” were not “stored in a safe and orderly manner,” not that material piles obstructed a “passageway, walkway, stairway or other thoroughfare” (12 NYCRR 23-2.1[a][1] …).

Kader also failed to eliminate all triable issues of fact on whether the safe-storage requirement was violated:

Further, Kader failed to eliminate all triable issues of fact as to whether the requirement that “[a]ll building materials shall be stored in a safe and orderly manner” was violated (12 NYCRR 23-2.1[a][1] …).

Given these failures, the court held that the Supreme Court should have denied Kader’s motion for summary judgment on the § 241(6)/23-2.1(a)(1) theory, regardless of the sufficiency of the plaintiff’s opposition (Winegrad). The claim is thus reinstated against Kader.

D. Labor Law § 200 and Common-Law Negligence: Waiver by Non-Opposition

The plaintiff did not oppose those parts of Kader’s summary judgment motion seeking dismissal of:

• the common-law negligence cause of action, and
• the Labor Law § 200 cause of action

As a result, the Appellate Division refused to consider arguments relating to those claims when raised for the first time on appeal, citing Jaimes-Gutierrez and Nooney. This underscores the procedural rule that a party must properly contest an issue in the trial court to preserve it for appellate review.

VI. Clarifying Complex Concepts

A. “Nondelegable Duty”

A nondelegable duty is an obligation that an entity (such as an owner or contractor) cannot avoid by hiring others or by contract. Under Labor Law §§ 240(1) and 241(6):

• An owner cannot defend by saying, “I hired a general contractor; I was not personally in control.”
• A contractor cannot escape by pointing to a subcontractor’s failure if the statute imposes direct obligations on the contractor itself.

However, whether an entity is within the category of “owners, contractors, or their agents” is itself a factual and legal question, as seen here with Kader.

B. Contractor vs. General Contractor vs. Separate Prime Contractor

• A general contractor typically has comprehensive responsibility for a project, including overall coordination, scheduling, and site safety.
• A separate prime contractor directly contracts with the owner for one segment (e.g., HVAC, elevators, masonry) without answering to a single general contractor. When there are multiple primes, each may have its own responsibilities and potential Labor Law exposure.
• A “contractor” under the Labor Law is functionally defined: someone responsible for coordinating and supervising the work, with power to enforce safety and hire responsible contractors, even if the contract calls the entity something else.

In Guacho, it is unclear on the current record whether Kader:

• was the overall general contractor,
• was just another prime contractor alongside Aaron, or
• had sufficient role in hiring/supervising Aaron to be deemed a “contractor” for the plaintiff’s work.

C. Falling Objects Under Labor Law § 240(1)

Not every falling object triggers § 240(1). The statute addresses elevated risks requiring specific protective devices. Thus, a plaintiff must show:

1. The object was being hoisted or secured, or required securing, as part of the undertaking.
2. The failure to provide, or inadequacy of, a statutory safety device caused the object to fall.

Examples that generally satisfy § 240(1) (depending on specific facts) include:

• materials being lifted by a crane, hoist, or pulley that fall due to lack of proper rigging, or
• objects stored or placed at a significant height that fall because they were not properly braced or secured given the elevation differential involved.

By contrast, a box standing at ground level on debris that simply tips over—without any hoisting operation, without being in a position normally calling for a § 240(1) device—may represent poor housekeeping or unsafe storage, but not an elevation-related hazard under § 240(1). That is the essence of the holding in Guacho.

D. “Open Area” vs. “Passageway, Walkway, Stairway, or Thoroughfare”

12 NYCRR 23-2.1(a)(1) distinguishes between:

• the general obligation to store materials safely and orderly (applicable anywhere on site), and
• the narrower obligation that material piles must not obstruct areas where people walk or pass through.

Defendants sometimes argue that the regulation is inapplicable if the accident occurs in an “open area,” i.e., not in a hallway, stairwell, or designated walkway. Guacho rejects that narrow reading, emphasizing that the safe-storage obligation applies independently of any obstruction-of-walkways issue.

E. Prima Facie Showing and Triable Issue of Fact

• A party moving for summary judgment must first make a prima facie showing that they are entitled to judgment as a matter of law, by presenting evidence that, if uncontroverted, would require judgment in their favor.
• A triable issue of fact exists when reasonable factfinders could reach different conclusions based on the evidence. If such an issue exists on a material point, summary judgment must be denied.

In Guacho:

• The plaintiff did not meet his prima facie burden on contractor status, so his motion was denied regardless of Kader’s opposition (Winegrad).
• Kader established its prima facie entitlement to summary judgment on § 240(1) based on the nature of the falling-object hazard (no qualifying elevation risk), and the plaintiff did not raise a triable issue in response.
• Kader failed to meet its prima facie burden on the § 241(6)/23-2.1(a)(1) claim, because factual questions remained about whether the materials were stored safely and orderly; thus its motion was denied regardless of the plaintiff’s opposition.

VII. Impact and Practical Implications

A. Narrowing of “Falling Object” Claims Under § 240(1)

Guacho continues a trend of careful policing of the boundaries of § 240(1):

• It reinforces that gravity-related is not the same as Labor Law § 240(1)-covered. A falling object must be associated with an elevation risk that requires statutory safety devices.
• Claims based on objects tipping over from ground-level positions or due to unsafe placement on debris will likely face increased scrutiny and may instead be channeled into § 241(6) (regulatory violations) or common-law negligence theories, not § 240(1).
• Defense counsel can cite Guacho as authority that a heavy item in a box, leaning or standing on debris at ground level, is not, without more, a § 240(1) “falling object” hazard.

B. Expanded and Clarified Reach of 12 NYCRR 23-2.1(a)(1)

The decision meaningfully clarifies the application of 23-2.1(a)(1):

• The safe and orderly storage requirement is not confined to materials in passageways, walkways, or stairways. It applies to all building materials anywhere on the site.
• Plaintiffs injured by toppling or shifting materials in open areas can rely on the first clause of 23-2.1(a)(1) without needing to show obstruction of a thoroughfare.
• Defendants seeking summary judgment will face a higher bar: they must affirmatively demonstrate that materials were stored in a manner that can be deemed “safe and orderly” as a matter of law, or that the materials were not “stored” (e.g., were in use, as in Cody).

This has particular resonance for trades such as elevator, window, and equipment installers, who often handle large, heavy, and boxed components stored temporarily near their work areas.

C. Construction Management and Safety Practices

For owners, contractors, and site managers:

• The case underscores the need for robust material storage protocols: large components (such as elevator door panels) should be properly braced, secured, or laid flat or otherwise stored in a way that does not create tipping hazards—especially when placed on debris or uneven surfaces.
• The decision encourages better documentation of:
  • who is responsible for storing which materials,
  • how such storage decisions are communicated, and
  • what safety procedures exist for inspecting and correcting unsafe storage.

Non-compliance may not trigger § 240(1), but it can create viable § 241(6) exposure with a nondelegable duty standard.

D. Litigation Strategy for Plaintiffs and Defendants

From a litigation perspective:

• Plaintiffs will likely:
  • continue to plead § 240(1) in falling-object scenarios, but must be prepared to show that the object was hoisted or required securing and that a statutory device was lacking;
  • in parallel, develop § 241(6) theories under 23-2.1(a)(1) for unsafe storage, particularly where heavy materials are left in precarious positions at or near ground level.
• Defendants should:
  • vigorously contest whether the elevation-related criteria of § 240(1) are met, using cases like Guacho, Parrino, and Gurewitz, and
  • develop factual records showing that materials were either:
    • not “stored” but “in use” (to invoke Cody), or
    • stored in a demonstrably stable and orderly arrangement, suitable to withstand normal site conditions.

Both sides must pay careful attention to procedural preservation. As Guacho shows, failing to oppose a portion of a summary judgment motion in the trial court can permanently foreclose that theory on appeal.

E. Unresolved Questions and Future Case Law

While Guacho clarifies several legal standards, it leaves open factual issues likely to be fleshed out in future proceedings or related cases:

• Under what circumstances will a trade contractor (like an elevator installer) be treated as entirely separate from a “general contractor,” and when will an overarching construction contractor be held responsible for the trade contractor’s safety lapses?
• What specific storage configurations for large, heavy, boxed items will courts deem as “safe and orderly” versus unreasonably hazardous as a matter of law?
• How will courts handle mixed scenarios where materials are arguably both “in use” and “stored” at the time of an accident?

The fact that the Appellate Division reinstated the § 241(6) claim but left numerous issues for trial suggests that future fact-specific determinations will further refine the contours of 23-2.1(a)(1).

VIII. Conclusion

Guacho v. DLV Empire, LLC offers a clear, structured application of New York’s core construction safety doctrines. Its principal contributions are:

• A reaffirmation that Labor Law § 240(1) does not cover all falling-object accidents; it applies only where the falling object is part of an elevation-related hazard requiring an enumerated safety device. A boxed elevator door, standing on debris and tipping at ground level, is outside that scope.
• A critical clarification that 12 NYCRR 23-2.1(a)(1)’s broad mandate—that all building materials be stored in a safe and orderly manner—applies even in open areas and independently of any obstruction to passageways. Unsafe storage of heavy components like elevator doors can therefore ground a viable Labor Law § 241(6) claim.
• A reminder that contractor status under the Labor Law is functionally based and frequently a question of fact, especially where multiple entities (general contractors, prime contractors, specialty installers) are involved.
• A reinforcement of procedural rules: a party’s failure to make a prima facie summary judgment showing is fatal, regardless of the opponent’s papers; and issues not raised below cannot be revived on appeal.

In the broader legal context, Guacho nudges New York construction litigation further toward:

• a narrow, carefully policed view of § 240(1), and
• a robust, fact-driven application of § 241(6) through specific Industrial Code provisions, here 23-2.1(a)(1), especially in material storage and housekeeping scenarios.

For practitioners, insurers, and construction professionals, the decision underscores the need for meticulous site management and equally meticulous motion practice, as both substantive and procedural nuances can decisively shape outcomes in New York’s highly developed Labor Law framework.