OPINION OF THE COURT
On October 26, 2001, plaintiff Igor Misicki, a laborer employed by Upgrade Contracting Company, was injured while working on a construction project at a two-building cooperative residential apartment complex located at 450 Shore Road in Long Beach, New York. The buildings were owned by defendant 430-50 Shore Road Corporation, which had retained an architect and hired Upgrade to carry out the work, which involved renovating the buildings’ pool deck.
In July and August, plaintiff and another Upgrade employee changed out the sleeves of the air-conditioning units in the buildings’ apartments. After Labor Day, plaintiff began working on the pool deck job, which first required him and his fellow workers to remove bricks from the base of the buildings’ exterior walls next to the deck so as to lay bare the underlying concrete. On the day of his accident, plaintiff was “cutting” exposed concrete with a handheld nine-inch electrically-driven angle grinder. Specifically, his foreman directed him to “cut” (more accurately, abrade) a slot 2½ inches deep into a line marked on the wall, about a foot or two above the deck.
When plaintiff retrieved the grinder from the toolbox maintained by Upgrade at the job site, he could not find the side handle for it. He described this handle as removable, and designed to be fitted onto the grinder in any one of two or three different positions. According to plaintiff, he complained to his foreman—three times—that the handle was unavailable; and his foreman repeatedly instructed him “to go back to work and . . . work[ ] without [the] handle.” Plaintiff testified that he “didn’t feel safe” using the grinder without the handle because he did not have “control over the machine.”
After “cutting the line” for two hours with the grinder sans the side handle, plaintiff reached a point where a balcony projected from the building’s exterior. The balcony was roughly three or four feet above the pool deck. In order to continue with his task, plaintiff stretched out on the deck underneath the balcony, resting on his right side; his headroom was limited, and he was lying about two feet away from the wall. Plaintiff
Plaintiff was immediately taken by ambulance to a nearby hospital, where his wounds were sutured. During the ensuing year, he underwent two surgeries to relieve breathing problems that he attributes to what his doctor described as a “complicated laceration of the nose.” He complains of continuing adverse health consequences, including headaches and difficulty breathing and sleeping. At the time of his deposition in April 2004, plaintiff had not worked since the accident.
In July 2002, plaintiff sued Shore and the architect for damages; he asserted common-law negligence and violations of Labor Law §§ 200, 240 (1) and § 241 (6). After the close of discovery in the summer of 2004, plaintiff withdrew his section 200 and 240 (1) claims, and discontinued the action against the architect. On March 3, 2003, Shore brought a third-party action against Upgrade, which subsequently agreed to defend and indemnify Shore. As a result, Shore’s third-party action was discontinued with prejudice on March 16, 2005.
In September 2005, Shore moved for summary judgment dismissing plaintiffs complaint, which by that point consisted solely of his claim under Labor Law § 241 (6). This provision “requires owners and contractors to provide reasonable and adequate protection and safety for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor”
(Ross v Curtis-Palmer Hydro-Elec. Co.,
Subpart 23-9 of the Code is entitled “POWER-OPERATED EQUIPMENT.” Section 23-9.1 (“Application of This Subpart”) specifies that “[t]he provisions of [subpart 23-9] shall apply to power-operated heavy equipment or machinery used in construction, demolition and excavation operations” with certain exclusions. This statement of applicability is followed by section 23-9.2 (“General Requirements”), and nine sections covering specific kinds of power-operated heavy equipment or machinery. 1 Section 23-9.2 (a) states in its entirety as follows:
“(a) Maintenance. All power-operated equipment shall be maintained in good repair and in proper operating condition at all times. Sufficient inspections of adequate frequency shall be made of such equipment to insure such maintenance. Upon discovery, any structural defect or unsafe condition in such equipment shall be corrected by necessary repairs or replacement. The servicing and repair of such equipment shall be performed by or under the supervision of designated persons. Any servicing or repairing of such equipment shall be performed only while such equipment is at rest.”
In its motion papers, Shore took the position that the Second Department—where this lawsuit was brought—had already “held that 23-9.2 (a) [was] a
general
requirement within the meaning of Ross . . . [and did] not give rise to the nondelegable duty under § 241 (6).” Shore adduced
Phillips v City of New York
(
In April 2006, Supreme Court granted Shore’s motion and dismissed plaintiffs Labor Law § 241 (6) claim. The trial judge concluded that plaintiff had failed to rebut Shore’s prima facie showing that section 23-1.12 (c) was inapplicable to a handheld electrically-driven grinder. As for section 23-9.2 (a), Supreme Court noted that Shore relied on
Anarumo, Phillips,
and
Thomp
son—all Second Department cases—while plaintiff cited the Fourth Department’s decision in
Zacher v Niagara Frontier Servs.
(
“[t]he requirement that a plaintiff must allege violation of a specific safety regulation promulgated by the Commissioner . . . was satisfied by the assertion . . . that defendants violated 12 NYCRR 23-9.2 (a). That regulation, promulgated under Labor Law § 241 (6), imposes upon owners, contractors and their agents an affirmative duty of maintenance and inspection of power-operated equipment” (id. at 897-898 [internal quotation marks and citations omitted]; see also Piccolo v St. John’s Home for Aging,11 AD3d 884 , 886 [4th Dept 2004] [“We have previously determined that 12 NYCRR 23-9.2 (a) is sufficiently specific to support a claim pursuant to section 241 (6)”]).
The trial judge determined that because this case was being litigated “within the confines of the Second Department,” he was compelled to “follow [the Second Department’s] holding that 12 NYCRR 23-9.2 is not specific enough to support a Labor Law § 241 (6) violation.”
Plaintiff moved to reargue, protesting that the Second Department cases were distinguishable because they interpreted only the first sentence of section 23-9.2 (a), and “no specific structural defect or unsafe condition
in the power equipment
was alleged” in those cases. By contrast, he contended, in
Zacher
Supreme Court was persuaded. In March 2007, the trial judge granted reargument, vacated his April 2006 decision and order, and denied Shore’s motion for summary judgment. Supreme Court decided that the provision in section 23-9.2 (a) “requirting] the repair or replacement of unsafe equipment [was] a specific positive command . . . applicable to the facts of the instant case.” In June 2007, the judge clarified that his April 2006 order remained in effect except insofar as modified by his March 2007 decision regarding section 23-9.2 (a). Supreme Court further noted that there was “a question of fact whether section 23-9.2 (a) was violated.”
In May 2008, the Appellate Division reversed. “Contrary to the Supreme Court’s determination,” the court opined, “12 NYCRR 23-9.2 (a) does not support the plaintiffs claim under Labor Law § 241 (6), as that provision merely establishes general safety standards which do not give rise to a nondelegable duty” (
Plaintiff sought to appeal to us. Because the First, Second and Third Departments
(see e.g. Fairchild v Servidone Constr. Corp.,
I.
As an initial matter, we note that subpart 23-9 applies to “power-operated
heavy equipment or machinery”
(12 NYCRR 23-9.1 [emphasis added]) such as excavating machines, pile drivers and motor trucks
(see
at 516 n 1). Shore never argued that the grinder was a hand tool subject to other provisions of the Code
(see e.g.
12 NYCRR 23-1.10 [b] [“Electrical and pneumatic hand tools”]) or, in any event, was not “power-operated heavy
Judge Smith objects to this assumption. While acknowledging the general rule that we do not resolve cases on grounds raised for the first time on appeal, he points to a concededly rarely invoked exception for a “newly raised point of law” that is “decisive” in a civil case and “could not have been obviated by factual showings or legal countersteps if it had been raised below” (Karger, Powers of the New York Court of Appeals § 17:1, at 591-592 [3d ed rev] [internal quotation marks and footnote omitted]). Declaring that the exception “fits this case perfectly,” Judge Smith would affirm the Appellate Division’s order in light of the “plain inapplicability of the regulation plaintiff relies on” (Smith, J, dissenting at 525).
This case does not fit the exception at all. We are not faced with a situation where a litigant “newly raise [s]” on appeal a “point of law” not put forward in the trial court—that is, we are not talking about an exception to the preservation requirement as it is classically defined. Here, Shore never so much as hinted much less claimed before us that section 23-9.2 (a) is inapplicable to the grinder involved in plaintiffs accident. For us now to decide this appeal on a distinct ground that we winkled out wholly on our own would pose an obvious problem of fair play. We are not in the business of blindsiding litigants, who expect us to decide their appeals on rationales advanced by the parties, not arguments their adversaries never made. In sum, plaintiff deserves an opportunity to refute the proposition on which the dissent would decide this appeal against him. And the opportunity may well be realized since our decision today certainly does not foreclose Shore, if it so chooses, from taking the position at trial that section 23-9.2 (a) is inapplicable to the grinder.
While appellate judges surely do not “ ‘sit as automatons’ ” (Smith, J., dissenting at 525, quoting Karger § 17:1, at 591), they are not freelance lawyers either. Our system depends in large part on adversary presentation; our role in that system “is best accomplished when [we] determine[ ] legal issues of statewide significance that have first been considered by both the trial and the intermediate appellate court”
(People v Hawkins,
II.
When analyzing section 23-9.2 (a)’s specificity, the parties focused on the regulation’s first three sentences, which are, in order, as follows:
(1) “All power-operated equipment shall be maintained in good repair and in proper operating condition at all times.”
(2) “Sufficient inspections of adequate frequency shall be made of such equipment to insure such maintenance.”
(3) “Upon discovery, any structural defect or unsafe condition in such equipment shall be corrected by necessary repairs or replacement.”
Plaintiff concedes that the first sentence is “undoubtedly general and unenforceable.” In his view, however, the second and third sentences, which he reads together, do more than “merely restate [ ] the common law duty to keep the worksite reasonably safe.” Instead, he contends, “what makes the second and third sentences of the regulation specific” is that they “say[ ] inspect (that’s a command), then upon discovery (that’s the when) of a structural defect or unsafe condition (that’s the circumstances calling for action . . . )[,] repair or replace (that’s the action or positive concrete command).” Citing our decision in
Morris v Pavarini Constr.
(
In our view, the first two sentences of section 23-9.2 (a)— which employ only such general phrases as “good repair,” “proper operating condition,” “[sufficient inspections,” and “adequate frequency”—are not specific enough to permit recovery under section 241 (6) against a nonsupervising owner or general contractor. We reach the opposite conclusion about
Here, plaintiff claims that there was no side handle available for the grinder on the day of his accident; that he complained to his supervisor about the missing handle—i.e., his employer had actual notice; that the absence of a handle constituted a structural defect in or an unsafe condition of the grinder; that his employer did not provide him with a handle or replace the allegedly defective grinder; and that the absence of the handle— i.e., the claimed structural defect or unsafe condition previously pointed out to his employer—proximately caused his injuries. Assuming that section 23-9.2 (a) is applicable, plaintiff has thereby alleged a breach of this provision of the Code. It would then remain for a jury to decide whether a violation, in fact, occurred; and whether the negligence of some party to, or participant in, the construction project caused plaintiffs injuries. If negligence is established, Shore would be vicariously liable for plaintiffs injuries without regard to fault.
Graffeo, J. (dissenting). Because I believe that 12 NYCRR 23-9.2 (a) does not contain a command that is sufficiently specific to support liability under Labor Law § 241 (6), I respectfully dissent. This Court has distinguished between Industrial Code provisions that merely reiterate the common-law standard of care and those that mandate compliance with concrete specifications
(Ross v Curtis-Palmer Hydro-Elec. Co.,
Although other subdivisions of section 23-9.2 include detailed specifications, such as section 23-9.2 (e) (certain power-operated machines that do not run on diesel fuel must be stopped during refueling), section 23-9.2 (a) does not. In Ross
v Curtis-Palmer Hydro-Elec. Co.
(
The provisions deemed actionable in Rizzuto and Morris each involved hazards identified with particularity in the regulation (e.g. slippery foreign substances on floors, forms that were not tied or braced to maintain position and shape) and concrete commands concerning how to remedy or avoid the identified hazards (e.g. the “foreign substance . . . shall be removed, sanded or covered”; “Forms . . . shall be properly braced or tied together so as to maintain position and shape”). But the regulation here contains no such directive. It broadly states that machines must be kept in “good repair” and “proper operating condition,” and that unspecified “structural defect[s] or unsafe condition[s]” be remedied in some unidentified manner upon discovery.
As I see it, there is no distinction between the requirement that forms be kept structurally safe (which we deemed not sufficiently specific in Morris) and that structural defects/unsafe conditions be remedied. After all, the mandate that “[f]orms . . . shall be structurally safe” necessarily incorporates the command that a structural defect be remedied if it is discovered—yet we held in Morris that this part of the regulation was not actionable, and we did so even though the provision related to a specific construction element—forms. Because section 23-9.2 (a) does not identify a particular hazard with specificity or contain a concrete command relating to such a hazard, I believe it does nothing more than restate the common-law standard of care and does not give rise to a nondelegable duty on the part of an owner who did not control the project. I would, therefore, affirm the order of the Appellate Division, which granted summary judgment dismissing the Labor Law § 241 (6) claim.
I am also unpersuaded that the allegation that plaintiff told his supervisor about the tool’s defective condition before the injury occurred alters the resolution of this case. Until today, we have assessed whether a regulation was specific enough to support Labor Law § 241 (6) liability by examining the language used in the regulation, without regard to the facts alleged in a particular case. While the actions plaintiff took after he discovered the alleged defect may be pertinent to a comparative fault defense, they are not relevant to the threshold question of whether the regulation on which he relies contains the concrete
As an alternative basis for affirmance, Judge Smith makes a compelling argument that section 23-9.2 (a) does not apply to the power hand tool involved in plaintiffs injury. But I cannot join in his dissent because this contention was neither preserved for review in the trial court nor raised by defendants in this Court. I view the preservation requirement as a constitutional limitation on this Court’s jurisdiction (see NY Const, art VI, § 3 [a] [“The jurisdiction of the court of appeals shall be limited to the review of questions of law except where the judgment is of death, or where the appellate division . . . finds new facts”]). With very few exceptions not relevant here, a party must raise an argument in the trial court to create an issue of law that can be reviewed in this Court
(see e.g. Bingham v New York City Tr. Auth.,
Smith, J. (dissenting). Subpart 23-9 of the Industrial Code is limited by its terms to “heavy equipment or machinery” (12 NYCRR 23-9.1, quoted in majority op at 516). Thus section 23-9.2, which is part of subpart 23-9, is plainly inapplicable to the hand tool involved in this case. Yet, because defendant did not raise that point, the majority feels compelled to decide whether, if the regulation were applicable to hand tools, it would be specific enough to support plaintiffs claim—an exercise akin to deciding whether I would be a bicycle if I had wheels. I think it is unwise to decide such hypothetical questions, and I do not think our preservation jurisprudence requires it. *
The authoritative work on practice in our Court, Karger, Powers of the New York Court of Appeals, states the “general rule”
“Manifestly, however, if any such rule were to be applied in every case without qualification, it would often be stultifying. Thus, it might require appellate judges to sit as automatons, merely to register their reactions to the arguments which counsel had made below. The fortunes of litigation might then turn, not on the merits of a case, but on the skill or prescience of counsel in the court of first instance.
“An exception to the general rule has accordingly long been applied, subject to certain qualifications, that a newly raised point of law may be entertained on appeal where it is one which is decisive of the appeal and which could not have been obviated ‘by factual showings or legal countersteps’ if it had been raised below.” (Id. at 591-592 [footnotes omitted].)
The exception stated by Karger fits this case perfectly. The plain inapplicability of the regulation plaintiff relies on is decisive of this appeal, and could not have been obviated by any factual showings or legal countersteps if raised below.
Our preservation rule is an important one—so important that we have occasionally referred to it as a matter of “jurisdiction”
(see e.g. People v Turriago,
Chief Judge Lippman and Judges Ciparick and Jones concur with Judge Read; Judge Graffeo dissents and votes to affirm in a separate opinion; Judge Smith dissents in another opinion in which Judge Pigott concurs.
Order reversed, etc.
Notes
. These are sections 23-9.3 (“Conveyors and Cableways”), 23-9.4 (“Power shovels and Backhoes Used for Material Handling”), 23-9.5 (“Excavating Machines”), 23-9.6 (“Aerial Baskets”), 23-9.7 (“Motor Trucks”), 23-9.8 (“Lift and Fork Trucks”), 23-9.9 (“Power Buggies”), 23-9.10 (“Pile Drivers”) and 23-9.11 (“Mixing Machines”).
. Judge Graffeo suggests that we are departing from our precedent of “assess[ing] whether a regulation [is] specific enough to support Labor Law § 241 (6) liability by examining the language used in the regulation, without regard to the facts alleged in a particular case” (Graffeo, J., dissenting at 523). We disagree. We conclude that 12 NYCRR 23-9.2 (a) is specific enough to permit recovery under Labor Law § 241 (6) because the language of the regulation mandates particular conduct “[u]pon discovery”—or actual notice—of a structural defect or unsafe condition. An allegation that the plaintiff told his or her supervisor about the defective condition before the injury is simply one way of demonstrating the actual notice required by the language of the regulation.
Because the majority bases its decision on the fact that plaintiff allegedly informed his employer of a defect in the tool before he was injured and the employer failed to remedy that defect, I presume the holdings in these Appellate Division decisions remain viable in circumstances where the plaintiff was unaware of the defective condition before the injury occurred and/or did not notify the employer.
I acknowledge, however, that the majority has a point when it says it would be unfair to decide a question not argued in this Court. If I could persuade my colleagues not to require preservation here, I would favor inviting the parties to comment on the issue before we decided it.