How Does a Construction Accident Lawsuit Work in New York?

If you were hurt on a construction site in New York, a construction accident lawsuit in New York is a third-party civil case you file against the property owner, general contractor, or another responsible party, and you can pursue it at the same time as your workers’ compensation claim. The two cases run on parallel tracks and pay for different things. Workers’ comp covers medical care and partial wages without regard to fault; the lawsuit, built around New York’s Labor Law, can recover full lost earnings, future medical costs, and pain and suffering, which comp does not pay.¹²

Workers’ Comp and a Lawsuit Are Separate Things

Workers’ compensation is no-fault insurance from your employer. You don’t have to prove anyone did anything wrong, and you get medical treatment and a portion of your wages. You cannot get paid for pain and suffering, emotional distress, or loss of enjoyment of life through comp.¹ You also generally cannot sue your own employer in civil court for ordinary negligence, which is the trade-off that makes comp work.

A third-party lawsuit is different. It targets anyone other than your direct employer whose conduct or statutory violation contributed to the accident, and it opens the door to the full range of personal injury damages. Both cases can proceed at once, and they usually should.

There is one piece of this that trips people up. Under Workers’ Compensation Law Section 29, the comp insurer has a lien on your third-party recovery for the benefits it already paid. The lien is reduced by your share of attorney fees and costs and is often negotiable, but it has to be sorted out before any settlement money is distributed.³ More serious: if you settle a third-party case without the comp carrier’s written consent, you can permanently lose all future comp benefits.⁴ Get the consent in writing.

The Three Labor Law Sections Your Case Will Rely On

Nearly every construction accident lawsuit in New York is built on one or more of three statutes. Each puts a different kind of duty on the owner and general contractor.

Section 240, the Scaffold Law

Section 240 applies to gravity-related hazards during the erection, demolition, repair, alteration, painting, cleaning, or pointing of a building or structure. It requires owners, general contractors, and their agents to furnish scaffolds, ladders, hoists, ropes, and similar devices that give proper protection.⁵ If a violation of that duty caused your injury, liability is absolute: the owner and GC are 100 percent on the hook, your own carelessness is not a defense, and compliance with OSHA does not save them.⁶

The courts read “gravity-related” broadly. Falls from heights are the classic case, but falling objects, scaffolds that tip, slides down slopes, and near-falls while handling heavy items can also qualify.⁶

The only real defense is “sole proximate cause,” sometimes called the recalcitrant worker defense. To win on it, the defendant has to show that adequate safety devices were there, you knew about them, you chose not to use them for no good reason, and the injury would not have happened otherwise. General safety meetings don’t count; the defendant has to point to a specific, immediate instruction you refused.⁷ One boundary worth knowing: owners of one- and two-family homes who hire a contractor but don’t direct the work are exempt from Section 240.⁵

Section 241(6), Industrial Code violations

Section 241(6) requires owners and contractors to follow the specific safety regulations in the New York State Industrial Code (12 NYCRR Part 23). To win, you have to point to a concrete code provision that was violated and show the violation contributed to your injury.⁸ The code reaches overhead hazards, open floor holes, ladder footing, scaffold strength, lighting, housekeeping, and much more.⁹ Vague or general safety language in the code won’t support a claim; it has to be a specific mandate.

Comparative negligence applies here, so your own share of fault can reduce your recovery. Under New York’s pure comparative fault rule, it cannot wipe it out.¹⁰

Section 200, the general duty

Section 200 is the codified common-law duty to provide a reasonably safe workplace. It is fault-based: you have to show the defendant had authority over the work or the area and either knew or should have known about the dangerous condition. Tripping hazards, broken machinery, poor lighting, and thin supervision are typical fact patterns. OSHA violations can serve as evidence of negligence under this section.¹¹

Who You Can Sue

Because you generally can’t sue your direct employer, the lawsuit targets other players on the project. The usual defendants are:

The property owner, who carries non-delegable duties under all three Labor Law sections.
The general contractor, with the same duties under Sections 240 and 241(6).
Subcontractors whose work created or contributed to the hazard.
Equipment manufacturers, distributors, and rental companies, under product liability theories.

Product claims can proceed on strict liability, negligence, or breach of warranty if a tool or machine had a design defect, a manufacturing defect, or inadequate warnings.¹² Other parties can face claims if they stripped safety features off equipment, failed to maintain it, or required it to be used in a way it wasn’t designed for.¹³

Immigration status does not block your case. In 2007 the New York Court of Appeals held in Balbuena v. IDR Realty and Majlinger v. Cassino Contracting Corp. that undocumented workers can sue for lost wages from on-the-job injuries, and that state-law protections apply regardless of status.¹⁴

Deadlines That Can End the Case Before It Starts

New York enforces these clocks strictly. Miss one and the claim is gone.

Personal injury lawsuit: three years from the date of the accident.¹⁵
Wrongful death lawsuit: two years from the date of death.¹⁵
Claims against a government entity: a notice of claim within 90 days of the injury, with the lawsuit itself filed within one year and 90 days.¹⁵
Workers’ compensation: notify your employer within 30 days, and file Form C-3 with the Workers’ Compensation Board within two years.¹⁶

The 90-day government notice is the one most often missed. If the site is owned or controlled by a public entity such as the MTA, Port Authority, or NYCHA, that clock starts on the day of the accident. Figure out who owns and controls the site early.

What the Case Can Pay

Unlike workers’ compensation, a civil lawsuit covers the full picture of what the injury cost you: complete past and future medical expenses, full lost wages, lost earning capacity, pain and suffering, emotional distress, disfigurement, and, in rare cases involving reckless conduct, punitive damages. New York does not cap non-economic damages in most personal injury cases.²

If you’re legally married, your spouse can file a separate derivative claim for loss of consortium, covering lost companionship, intimacy, and support. Only a legal spouse has standing, and the claim rises or falls with the main injury case.¹⁷ New York does not recognize loss of consortium in wrongful death actions.¹⁸

Scale matters here. The absolute-liability structure of Section 240 drives some of the largest personal injury recoveries in the country. A 2025 settlement from the 2016 crane collapse on Worth Street in Lower Manhattan reached $272.5 million on the eve of trial.¹⁹²⁰ Earlier results include a $53.5 million verdict for a scaffold collapse victim and a $16 million settlement, over $25 million with an annuity, for an asbestos handler who fell 23 feet at the former Pepsi plant in Long Island City.²¹

How the Lawsuit Moves

The path is fairly consistent. You get medical care, report the injury to a supervisor, file for workers’ compensation, and, if a third-party claim looks viable, talk to an attorney.¹⁶ The attorney gathers accident reports, maintenance logs, medical records, witness statements, and OSHA documents.

The civil case opens with a summons and complaint filed in Supreme Court. The defendant has roughly 30 days to answer. You then serve a bill of particulars that lays out the injuries, the financial losses, and the basis for the defendant’s responsibility. At a preliminary conference, the court sets the schedule for document exchange, depositions, and a defense medical examination.²²

Discovery and depositions follow. Settlement talks can happen at any point and most construction cases do resolve before trial. If yours doesn’t, it goes on the trial calendar. New York often uses bifurcated trials: the jury decides liability first, then damages in a second phase.²²

You don’t pay anything up front. Attorneys handle these cases on contingency, and under 22 NYCRR 603.7(e) the fee in a personal injury case is capped at one-third of the recovery.²³ Litigation costs such as filing fees, expert fees, and deposition transcripts are usually advanced by the firm and then deducted from the final recovery.²⁴

If the Worker Died

A fatal accident changes who can sue and what can be recovered. The right to bring the case passes to the worker’s estate, and only a personal representative appointed by Surrogate’s Court can file a wrongful death action.²⁵ The representative has to prove negligence, causation, surviving beneficiaries, and that those beneficiaries suffered financial loss.

Wrongful death damages in New York are limited to “pecuniary loss” under EPTL Section 5-4.3: lost earnings, medical and funeral expenses, and the value of support and services. Children can recover for loss of parental guidance. Survivors cannot recover for their own grief or emotional pain.²⁵ A separate survival action can recover for the conscious pain and suffering the worker experienced before death.²⁶

Criminal Exposure Under Carlos’ Law

Carlos’ Law, effective in early 2023, is a separate criminal track that doesn’t change your civil case but is worth knowing about. Named for Carlos Moncayo, a 22-year-old killed in a 2015 trench collapse, the law raised the fines a construction company can face when it negligently, recklessly, or intentionally causes an employee’s death or serious injury. Felony convictions now carry fines between $500,000 and $1,000,000; misdemeanors between $300,000 and $500,000.²⁷ The definition of “employees” was expanded to include day laborers and subcontractors, and the law includes whistleblower protections for reporting safety violations.²⁸ Criminal fines go to the state, not to you, but a prosecution running alongside your civil case can affect how the defense approaches settlement.

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