There are cases in which an individual who has been hurt has unintentionally been at fault for the accident which still qualify under New York State Labor Law Section 240.
The issue is whether there was an unsafe condition created that led to the accident. There are exceptions such as when the unsafe condition was caused by the injured person’s misconduct or failure to follow express instructions.
However, in most cases, it’s simply a matter of whether the conditions are safe or unsafe and you should always consult with an attorney to get the attorney’s opinion as to whether action is available.