This page summarizes and comments on a published court decision. It is general information, not legal advice, and reading it does not create an attorney-client relationship. Every case depends on its own facts. Unless this page says otherwise, The Eskesen Law Firm did not represent any party in this case.
Bottom line
A Labor Law 241(6) claim depends on specific Industrial Code sections, and a worker hurt by a power saw with a faulty guard may rely on them even if someone else was running the saw. Here, the First Department reinstated a worker’s Labor Law 241(6) claim under three Industrial Code sections after a circular saw operated by a co-worker allegedly cut his finger, because his testimony that the bottom of the saw did not protect him from the blade and that the part securing the blade would get “stuck” raised questions of fact.
The case
- Court
- Appellate Division, First Department
- Decided
- November 5, 2026
- Case
- Volquez v Wade Hampton Apts., Inc.
- Citation
- 2026 NY Slip Op 06548
- Official text
- Read the decision on the New York courts’ official reporter site
The facts
The plaintiff alleged that he was injured when a circular saw being operated by his co-worker cut his finger. He sued Wade Hampton Apartments, Inc., 2166 Associates, LLC, Trion Real Estate Management LLC, and others. Those three defendants moved for summary judgment, and the Supreme Court, Bronx County, dismissed his Labor Law § 241(6) claim insofar as it rested on Industrial Code (12 NYCRR) §§ 23-1.12(c)(1), 23-1.5(c)(3), and 23-9.2(a). He appealed that part of the order.
The holding
The First Department unanimously reversed that part of the order and reinstated the claim. The plaintiff “correctly argues that his Labor Law § 241 (6) claim based on Industrial Code § 23-1.12(c)(1) is not barred simply because he was not the operator of the saw” (2026 NY Slip Op 06548, *1, citing the Second Department’s decision in Markey v C.F.M.M. Owners Corp.). The court also pointed to the section’s second clause, which “does not refer to the operator” and requires saws like this one to have “a movable self-adjusting guard below the base plate which will completely cover the saw blade to the depth of the teeth when such saw blade is removed from the cut” (id.). His testimony “that he had observed on occasions preceding the accident that the part of the saw that secured the blade would get ‘stuck,’ and that the bottom part of the saw did not provide protection from the saw’s disk is sufficient to raise an issue of fact” (id.). The same testimony raised an issue under section 23-1.5(c)(3), which requires safety devices and equipment in use to be kept “sound and operable” (id.). And under section 23-9.2(a), which requires defects in such equipment to be corrected on discovery, his evidence of “an obvious defect” supported “the inference that they knew or should have known that the saw needed to be repaired” (id.).
What changed
Little new: on the point that a worker who was not running the saw may rely on the rule, the court followed the Second Department’s decision in Markey v C.F.M.M. Owners Corp. (51 AD3d 734 [2d Dept 2008]); it also relied on its own decisions in Williams v River Place II, LLC (145 AD3d 589 [1st Dept 2016]) and Bacchus v 676 E. 179 LLC (248 AD3d 640 [1st Dept 2026]).
What it means
- Labor Law 241(6) requires that areas where construction, excavation, or demolition work is being performed provide “reasonable and adequate protection and safety” to the workers there, and it requires owners and contractors to comply with the Industrial Code rules that carry it out, with an exception for some owners of one- and two-family homes.
- A rule about a power saw’s guard may protect the worker next to the saw, not only the one holding it.
- A worker’s own account of how the equipment had been failing before the accident can raise a question of fact, including whether the defendants should have known that it needed repair.
Our view
Commentary by Frank N. Eskesen. This section is opinion.
As in our entry on Ramos v Lendlease (First Department, October 29, 2026), the worker’s Labor Law 241(6) claim here turned on specific Industrial Code sections. In our experience, defendants in Labor Law cases often argue for a narrow reading of the duties placed on owners and contractors. Here, the court held that a claim under the saw guard rule is not barred simply because the injured worker was not the one running the saw. We believe the court got this correct. A guard is meant to cover the blade, and the blade (and the rule) does not care who it cuts. The court also noted that one clause of the rule says nothing about the operator at all. Two lessons. 1. If you are hurt by equipment at work, tell your lawyer everything you noticed about it before the accident, such as parts that were not working properly or guards that were missing, and who else saw it. An injured worker can bring a workers’ compensation claim, but in most cases cannot sue the employer (Workers’ Compensation Law § 11); however, owners and contractors may also be held responsible for a worker’s injuries under the Labor Law. Get legal advice promptly. 2. For lawyers, plead every Industrial Code section that fits the equipment, including clauses that do not depend on who was running it, and ask early to inspect the tool. The person holding the tool is not the only person the safety rules protect.
Topics
Court: First Department. Year: 2026. Statutes: Labor Law § 241(6); 12 NYCRR 23-1.12(c)(1), 23-1.5(c)(3), 23-9.2(a). Result: reversed.
Reviewed by Frank N. Eskesen, admitted in New York since 2000. Decided November 5, 2026. Posted November 11, 2026.
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