New York Civil Law

Labor Law § 240 Rebar Mat Fall Defense | Marte v Tishman

At a Glance

Summary: A Labor Law § 240 rebar mat fall does not automatically create summary judgment liability under New York’s Scaffold Law. In Marte v Tishman Constr. Corp., the Appellate Division, First Department held that the § 240(1) claim remained triable because covering the rebar with plywood or planks may have been impractical and contrary to the concrete work being performed.

The decision also dismissed the Labor Law § 200 claim while allowing the Labor Law § 241(6) claim to proceed based on a late-added Industrial Code provision.

Court: Appellate Division, First Department

Decision Date: January 18, 2024

Topic: Labor Law §§ 200, 240(1) and 241(6)

What Happened:

The plaintiff was installing rebar on a construction site. He fell through a rebar mat to the level below. The parties disputed the elevation differential: the plaintiff testified the gap was four feet, while his appellate brief accepted the defendants’ position that the gap was 18 inches.

The plaintiff argued that plywood or planking should have been placed over the rebar. The rebar work was to be followed by a concrete pour. The owner defendants had no on-site representatives controlling the plaintiff’s work.

Tishman, the construction manager, did not install the rebar mat, alter the rebar mat, or receive complaints about its condition.

The Court’s Decision

Labor Law § 240(1)

The First Department affirmed the motion court’s denial of summary judgment to both sides.

The Court held that the defendants could not obtain dismissal as a matter of law because there was no bright-line minimum height differential for a Labor Law § 240(1) elevation hazard. The Court relied on Brown v 44 St. Dev., LLC, where liability was upheld after a worker fell through a latticework rebar deck to a plywood form 12 to 18 inches below. 

The plaintiff also failed on his summary judgment motion on his § 240(1) claim. The rebar was being installed before a concrete pour. The Court held that testimony supported the defendants’ argument that placing plywood or planks over the rebar could have been impractical and contrary to the very work being performed.

Claims Handling Point: In rebar mat and concrete-pour cases, the best Scaffold Law defense may be practical sequencing: what work was being done, what had to happen next, and whether the proposed safety device would have defeated the task itself.

Labor Law § 241(6)

The defendants initially met their burden because the plaintiff had not pleaded a specific Industrial Code violation. But that did not end the claim.

The First Department allowed the plaintiff to amend the bill of particulars to allege a violation of 12 NYCRR § 23-1.22(c)(1), which addresses platforms used as working areas or for pedestrian traffic. Because workers were expected to walk across the rebar mat while carrying rebar, the First Department held that there was a triable issue as to whether the rebar mat functioned as a “platform.” 

The Court rejected the other proposed Industrial Code provisions. 12 NYCRR § 23-1.5(a) was too general, and 12 NYCRR § 23-1.7(b)(1)(i) did not apply because the opening was not large enough for a person to fall completely through. 

Claims Handling Point: Do not assume a Labor Law § 241(6) claim is over merely because the plaintiff failed to plead the right Industrial Code provision at the outset.

Labor Law § 200

The First Department affirmed the motion court’s dismissal of the plaintiff’s Labor Law § 200 and negligence claims.

The Court held that the owner defendants had no workers or representatives on site who could control the plaintiff’s work, create the condition, receive actual notice, or conduct inspections sufficient to impute constructive notice.

As to Tishman, the Court found no evidence that it created the rebar condition. The plaintiff’s employer was installing the rebar and pouring concrete. There was also no evidence of actual notice because witnesses testified that no one complained about the condition of the rebar. General awareness of a possible dangerous condition was not enough.

Claims Handling Point: Labor Law § 200 and negligence defenses remain strong where the record separates the owner or construction manager from the injury-producing work.

Key Language from the Decision

From a Claims Perspective

In a New York rebar mat fall case, separate the exposure into three different questions:

  1. Labor Law § 200 / negligence: Did the owner, general contractor, or construction manager control the work, create the condition, or have notice?
  2. Labor Law § 241(6): Can the plaintiff identify a specific Industrial Code provision, even late in the case?
  3. Labor Law § 240(1): Was there an elevation-related risk, and would the proposed safety device have been practical given the work being performed?

That separation is the practical value of Marte.

Why This Matters

The First Department’s holding reinforces strong early defenses to Labor Law § 200 and negligence claims where control and notice are absent.

It also confirms that Salazar v Novalex Contr. Corp.‘s “impractical and contrary to the work” principle remains a meaningful defense under Labor Law § 240(1). The holding shows that a relatively small elevation differential may still create a triable Scaffold Law issue.

The First Department’s holding also warns defendants that Labor Law § 241(6) claims can survive through late Industrial Code amendments.

Practice Pointers

For Defendants and Insurers

Preserve the Salazar defense early. Ask witnesses whether plywood, planks, covers, or guardrails would have interfered with the concrete pour or the rebar installation. The crucial question is not merely whether a safety device could be imagined. The question is whether that device was practical for the work being performed.

For Claims Professionals

Do not evaluate the case only as “a Scaffold Law case” only. Marte shows how one construction accident can produce three very different outcomes: § 200 dismissed, § 241(6) revived, and § 240(1) left for trial.

For Litigators

The bill of particulars matters, but it may not be final. If the plaintiff failed to identify a specific Industrial Code provision, move on it. But also prepare for an amendment argument based on lack of prejudice, especially where the new provision does not change the facts or theory of the case.

Forward This Post

If this analysis affects a claim file, coverage position, or motion strategy, forward it to the person handling the issue.

Read more analysis from New York Civil Law here.

Questions This Case Series Answers:

Sources

Labor Law § 240(1); Scaffold Law defenses; New York construction accident defense; Labor Law § 241(6); Industrial Code § 23-1.22; rebar mat fall cases; Labor Law § 200; construction manager liability; summary judgment in Labor Law cases; First Department construction decisions.

Photo Credit: Zoshua Colah

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