Today’s column focuses on a single Court of Appeals ruling—Bazdaric v. Almah Partners 2024 NY Slip Op 00847 [Ct App Feb. 20, 2024]—and the two issues that were presented in that case. One issue, which split the First Department panel 3 to 2, concerned the “integral to the work” defense. The defense is far from new, and essentially posits that owners and contractors cannot be blamed for a regulatory violation when the nature or objectives of the work made compliance impossible. For example, even if a regulation requires that holes which are potential falling hazards must be covered, it is obviously not feasible to cover such a hole while it is being filled with concrete.

Yet, while the defense has deep roots in the law and surely applies when compliance with the subject regulation is inconsistent with “the objectives of the work plan,” it had expanded in recent years, at least in the opinions of some Appellate Division panels, so as to apply whenever the subject hazard was part of the work itself, and irrespective of whether compliance with the regulatory standard was inconsistent with “the objectives of the work plan.” And the First Department had here adopted that expansion of the doctrine over a two-judge dissent. Whether the majority or the dissenters had the right of it was a question of great import.