Mann v Mezuyon: Court of Appeals Holds Industrial Code §23-4.2(k) Too General for Labor Law §241(6)

Last reviewed: June 2026

Key Takeaways — Mann v Mezuyon, LLC (Court of Appeals, May 26, 2026)

• The holding: Industrial Code §23-4.2(k) — “[p]ersons shall not be suffered or permitted to work in any area where they may be struck or endangered by any excavation equipment” — is not sufficiently specific to serve as a predicate for vicarious liability under Labor Law §241(6). 2026 NY Slip Op 03257.
• It was close. The Court split 4-3. Judge Troutman wrote the majority, joined by Judges Garcia, Singas, and Cannataro. Chief Judge Wilson dissented, joined by Judges Rivera and Halligan.
• A long-running department split is over. The First, Third, and Fourth Departments had long held §23-4.2(k) too general; the Second Department — the appellate department covering Nassau and Suffolk — had gone the other way for two decades. Mann resolves the conflict statewide, against the predicate.
• Long Island plaintiffs lose a tool they had. Because Long Island sits in the Second Department, excavation-equipment struck-by plaintiffs here could previously plead §23-4.2(k). After Mann, they cannot — pleading more specific Industrial Code provisions is now mandatory, not optional.
• Nothing in Mann touches §240(1) or §200. The Scaffold Law’s gravity-related absolute liability and the common-law/§200 negligence track are unchanged. Mann is a §241(6)-predicate decision, full stop.
• The 2026 auto tort reform does not reach these cases. The new CPLR §1411(b) mostly-at-fault bar applies only to Insurance Law Article 51 motor-vehicle actions — construction-site claims remain governed by pure comparative negligence (and §240(1) claims by no comparative fault at all).

The Court of Appeals does not take many Labor Law §241(6) cases, and when it takes one to resolve a four-department split, every construction-accident litigator in the state should read it. On May 26, 2026, the Court decided Mann v Mezuyon, LLC, 2026 NY Slip Op 03257, holding 4-3 that Industrial Code §23-4.2(k) — the excavation-equipment “struck or endangered” provision — is too general to support a §241(6) claim.

I litigate New York personal injury cases from both sides of the table, and I handle the appeals — over 1,000 of them. Here is the practitioner’s read: what the Court held, and what it actually changes for owners, general contractors, and injured workers on Long Island construction sites.

One note on method before we start: this analysis is built from the slip opinion as reported by the Official Reports and Justia, together with the early defense-bar and plaintiff-bar commentary (Ropers Majeski, Milber Makris, Hurwitz Fine). Where the commentary characterizes the Court’s reasoning rather than quoting it, I say so. Read the slip opinion itself before citing it in a brief.

The Facts: A Driller, a Stalled Rig, and a Rotating Excavator

According to the slip opinion, the case arose from an accident at a Manhattan construction site owned by Mezuyon, LLC, where Mayrich Construction Corp. was performing excavation work that required drilling into bedrock and blasting. Plaintiff William Mann was a Mayrich driller operating one of the drilling rigs.

The accident sequence, as the Court described it: Mann’s drill stopped working and a mechanic was summoned. Mann moved his rig roughly 20 to 30 feet away, and while lowering the drill head at the mechanic’s request, he was struck by the back corner of an excavator rotating into him, knocking him to the ground.

That fact pattern — a worker on foot struck by the swing radius of heavy equipment — is one of the most common serious-injury scenarios in excavation work. It is exactly the hazard §23-4.2(k) describes. Which is what made the case such a clean vehicle for the specificity question: if the regulation fit any accident, it fit this one. The problem, the majority held, is that describing a hazard is not the same as commanding a remedy.

The Procedural Path: Ten Years from Index Number to Court of Appeals

Mann sued Mezuyon asserting the standard construction-accident quartet: common-law negligence and Labor Law §§200, 240(1), and 241(6). After Mezuyon moved for summary judgment, Mann cross-moved to amend his bill of particulars to add Industrial Code §23-4.2(k) as a predicate for the §241(6) claim. Supreme Court allowed the amendment, but the §23-4.2(k) predicate did not survive the courts below: the First Department held the provision insufficiently specific and expressly declined to adopt the Second Department’s contrary view, aligning itself with the Third and Fourth Departments. The Court of Appeals granted leave and affirmed.

A decade from index number to Court of Appeals decision. That is worth pausing on. Construction-accident litigation at this level is appellate litigation, and the lawyers who win these cases are the ones who built the record for the appeal years before anyone briefed it.

The Framework: §240(1) vs. §241(6) vs. §200

To understand why Mann matters, you need the three-track structure of New York construction-accident liability. Every construction case I take — plaintiff or defense — gets sorted into these tracks on day one.

The §241(6) track is the odd one. It imposes a nondelegable duty on owners and general contractors — like §240(1) — but only if the plaintiff identifies a violation of an Industrial Code regulation that, in the Court of Appeals’ long-standing formulation from Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494 (1993), mandates compliance with concrete specifications rather than merely restating general common-law safety standards. A violation of a qualifying provision is some evidence of negligence (Rizzuto v L.A. Wenger Contracting Co., 91 NY2d 343 [1998]), and comparative fault remains in play — unlike under the Scaffold Law’s absolute-liability regime.

For thirty years, the recurring fight under Ross — through cases like Misicki v Caradonna, 12 NY3d 511 (2009) — has been which side of the general/specific line a given Part 23 provision falls on. Mann is the newest data point, and a consequential one.

What the Court Held — and Why

The regulation at issue, 12 NYCRR 23-4.2(k), reads in full:

“Persons shall not be suffered or permitted to work in any area where they may be struck or endangered by any excavation equipment or by any material being dislodged by or falling from such equipment.”

Read it twice. It is a perfectly sound safety norm and a hopeless compliance standard, and you can see both opinions coming from the text alone.

The majority framed the question and answered it in one stroke. Per the slip opinion: “The issue before us is whether section 23-4.2(k) of the Industrial Code … is sufficiently specific to serve as a basis for vicarious liability under Labor Law §241(6). We hold that it is not.”

The reasoning, as reported in the opinion and the early analyses:

• The provision states a broad, general prohibition rather than mandating compliance with concrete specifications. It tells the worksite that workers must not be endangered by excavation equipment; it does not say how — no required distances, no spotter requirement, no barricade or swing-radius rule, no defined protected zone.
• Its operative terms are broad and subjective. As the defense-bar commentary emphasizes, words like “area” and “endangered” set no measurable standard an owner or contractor could comply with — or be held to — in advance. (Milber Makris analysis.)
• A hazard description is not a remedial command. Ropers Majeski’s analysis reads the decision as confirming a two-part demand: a qualifying predicate must both identify a specific hazard and prescribe a specific remedial measure. Identifying a workplace danger without specifying the concrete means of addressing it is not enough to create a nondelegable duty.

The dissent. Chief Judge Wilson dissented, joined by Judges Rivera and Halligan. A 4-3 split on a Ross specificity question tells you how genuinely contestable the line is: three judges of the state’s highest court read the same regulation and would have decided the appeal differently. I will own my priors here — for my plaintiff-side docket I wanted the dissenters to carry the day, because §23-4.2(k) was the workhorse predicate for swing-radius cases in the Second Department. They did not, and four votes beat three. Practitioners briefing specificity fights over other Part 23 provisions should mine both opinions; the dissent’s framework will shape how plaintiffs distinguish Mann going forward. (Read the full opinions at the Official Reports; I am deliberately not paraphrasing the dissent’s reasoning beyond the vote here.)

The Department Split Mann Killed — and Why Long Island Feels It Most

Here is the part of this decision that matters most for our practice area, and that most of the early coverage underplays: the Second Department was the outlier that Mann overruled, and the Second Department is Long Island.

Since the early 2000s — the line is usually traced to Garcia v Silver Oak USA (2d Dept 2002), per the McCormick & Priore survey of the split — the Second Department treated §23-4.2(k) as sufficiently specific to support a §241(6) claim. The First, Third, and Fourth Departments disagreed. For two decades the departments, as that survey put it, agreed to disagree.

Practical consequence: a Mayrich-type struck-by accident in Hauppauge or Hempstead supported a §241(6) claim predicated on §23-4.2(k); the same accident in Manhattan did not. Forum mattered enormously. Mann ends that — in the direction that takes the predicate away from Nassau and Suffolk plaintiffs.

That last row is the sleeper issue. Defense firms are already reading Mann as, in Milber Makris’s words, “powerful statewide appellate authority to challenge similarly pleaded Labor Law §241(6) claims predicated on general, non-specific Industrial Code provisions.” Expect a wave of motions retesting predicates that trial courts had been sustaining on autopilot — especially in the Second Department, whose specificity case law just lost one of its anchors.

Why Excavation Cases Are a Recurring Battleground

Excavation work generates an outsized share of the hard appellate questions in New York construction law, and Mann is only the latest example. The structural reason: excavation hazards sit awkwardly across all three liability tracks.

Notice what the grid shows: the struck-by quadrant — statistically one of OSHA’s “focus four” construction killers — is now the quadrant with the weakest statutory coverage in New York. Gravity cases get §240(1) absolute liability. Trench-collapse and falling-object cases get concrete Industrial Code rules and, often, §240(1) too. After Mann, the worker hit by a rotating excavator is left with whatever more specific equipment provisions fit the facts, plus §200 and common-law negligence — both of which require proving fault and both of which expose the plaintiff to comparative-negligence reduction.

That asymmetry is also why the Scaffold Law reform debate and decisions like Mann travel together: each adjusts, in opposite directions, how much of the construction-injury universe is covered by liability rules that don’t depend on proving anybody’s negligence. And note what did not change this spring: the 2026 auto tort reform package — the 90/180 deletion and the new CPLR §1411(b) mostly-at-fault bar — applies only to Insurance Law Article 51 motor-vehicle actions. Construction-site claims remain pure-comparative-negligence territory, and §240(1) claims remain immune from comparative fault entirely.

What Mann Changes on a Long Island Site

For owners and general contractors (and their carriers):

• Audit pending §241(6) claims now. Any bill of particulars resting on §23-4.2(k) — and in Second Department venues there are many — is a summary judgment motion waiting to be made. Mann applies to pending cases. If the note of issue has been filed, calendar carefully: the CPLR 3212(a) clock runs from service of the motion, not filing, and many parts shorten the 120 days to 60.
• Re-test other “general” predicates. Mann’s reasoning — hazard identification without a concrete remedial command is not enough — is a template for attacking other Part 23 provisions that read like restatements of common-law care.
• Don’t over-read the win. Mann does nothing to §240(1), nothing to §200, and nothing to the more specific excavation, shoring, hoisting, and equipment provisions of Part 23 that have long been held sufficiently specific. An excavator strike with bad facts on supervision and control is still a dangerous case for the defense.

For injured workers and their lawyers:

• Plead the specific provisions, with the record to match. The era of dropping §23-4.2(k) into the bill of particulars as a catch-all is over. Counsel needs site photographs, equipment specs, witness statements, and OSHA materials early, because matching facts to a concrete Industrial Code command is now the whole §241(6) game. On the equipment side of Part 23, the provisions that mandate specific operational safeguards remain in play; the general “don’t endanger workers” language does not.
• Build the §200/common-law file from day one. Where no specific predicate fits a struck-by case, liability runs through supervision, control, and notice. That means early depositions of the GC’s site-safety personnel and preservation of daily logs, toolbox-talk records, and swing-radius/spotter protocols.
• Screen every excavation case for the gravity angle. A worker knocked into an excavation, or struck by falling material, may have a §240(1) claim that Mann doesn’t touch — and §240(1) is where the largest New York construction recoveries come from. Theory selection is outcome selection. The same discipline applies in crane and heavy-equipment cases.
• Mind comparative fault. Once a case lives on §241(6)/§200 rather than §240(1), the worker’s own conduct reduces the recovery. Settlement modeling has to account for that — our settlement calculator builds in the distinction, and our guide to construction-zone accident settlements walks through how these variables move case value. Every case differs; no figure is a promise.

For Referring Counsel: This Is an Appellate Decision About Appellate Lawyering

Mann is a reminder that New York construction litigation is won and lost at the predicate-selection and record-building stage, years before the Appellate Division sees the case. It is also a reminder that a department split is an invitation, not a settled answer. If you have a pending §241(6) case pleading §23-4.2(k), a specificity fight brewing over another Part 23 provision, or an excavation case where the §240(1)/§241(6)/§200 theory selection will decide the outcome, this is exactly the kind of issue we brief every week.

The Law Office of Jason Tenenbaum, P.C. works with referring attorneys across New York: per-diem motion practice, appellate briefing and argument (1,000+ appeals), and co-counsel arrangements on personal injury, no-fault, and insurance coverage litigation. Referring counsel stay involved to the degree they want. Call (516) 750-0595 or use the contact form — attorney inquiries answered same day.

And if you’re a worker hurt on a Long Island site — or the family of one — the consultation is free. Our personal injury practice handles construction cases from intake through appeal: call (516) 750-0595 before you talk to any insurance carrier.

Frequently Asked Questions

What did the Court of Appeals decide in Mann v Mezuyon?

In Mann v Mezuyon, LLC, 2026 NY Slip Op 03257 (decided May 26, 2026), New York’s highest court held 4-3 that Industrial Code §23-4.2(k) — which says workers shall not be “suffered or permitted to work in any area where they may be struck or endangered by any excavation equipment” — is not sufficiently specific to support a Labor Law §241(6) claim. The regulation describes a hazard but doesn’t command any concrete protective measure, so it cannot create the nondelegable duty §241(6) imposes on owners and general contractors.

Can I still sue if I was struck by an excavator on a New York construction site?

Yes. Mann eliminated one Industrial Code predicate for one statutory theory — it did not eliminate excavator struck-by cases. Depending on the facts, an injured worker may still have a Labor Law §241(6) claim based on a more specific Industrial Code provision, a Labor Law §200/common-law negligence claim against parties who controlled the work or had notice of the danger, and a workers’ compensation claim against the employer. If the accident involved falling material or a fall into the excavation, Labor Law §240(1)‘s absolute-liability protections may also apply. Theory selection is fact-driven — have a construction accident lawyer screen the case promptly.

Does Mann v Mezuyon affect Labor Law 240(1) scaffold and fall cases?

No. Mann is strictly a §241(6) Industrial Code-specificity decision. Labor Law §240(1) — gravity-related hazards, absolute liability, no comparative-fault defense — is untouched, as are §200 and common-law negligence. Workers injured in falls from height or by falling objects have the same rights they had before May 26, 2026.

Why does Mann v Mezuyon matter more on Long Island than anywhere else?

Because Nassau and Suffolk Counties sit in the Appellate Division, Second Department — the one department that had treated §23-4.2(k) as a valid §241(6) predicate for roughly two decades, while the First, Third, and Fourth Departments rejected it. Mann resolves that split against the Second Department’s position, so Long Island excavation-equipment cases lose a pleading tool that was viable here until this spring. Pending Second Department cases built on §23-4.2(k) should be re-evaluated now.

Does the 2026 New York tort reform 50% fault bar apply to construction accident cases?

No. The mostly-at-fault recovery bar enacted in May 2026 (new CPLR §1411(b)) applies only to personal-injury actions subject to Insurance Law Article 51 — motor-vehicle cases. Construction-site claims are outside the carveout: pure comparative negligence still governs §241(6) and §200 claims, and comparative fault remains no defense at all to a §240(1) claim.

Is Industrial Code 23-4.2(k) now meaningless?

Not quite. The regulation still exists and still expresses a worksite safety norm — OSHA and site-safety programs still treat excavation-equipment swing radii as a struck-by hazard to be controlled. What changed is its litigation function: after Mann it cannot serve as the predicate regulation for a Labor Law §241(6) vicarious-liability claim against an owner or GC. Evidence that a contractor let workers walk through an excavator’s swing path can still power a §200/common-law negligence case where supervision, control, or notice can be shown.

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Hurt on a construction site in Nassau, Suffolk, or anywhere in New York? The Law Office of Jason Tenenbaum, P.C. handles construction accident cases through trial and appeal — and after Mann, the difference between a dismissed claim and a seven-figure recovery can be which Labor Law theory your lawyer builds from day one. Call (516) 750-0595 for a free consultation, or start with our settlement calculator to see how the liability theory changes the math. Attorneys: case-analysis and co-counsel inquiries on Labor Law and Industrial Code specificity issues are answered same day.

This article describes the law as of June 2026 and is attorney advertising, not legal advice. Mann v Mezuyon analysis is based on the slip opinion as published in the Official Reports and early bar commentary; read the full opinion, including the dissent, before relying on it in litigation. Every case differs.