Opinion
CA 03-00108
June 13, 2003.
Appeal from that part of an order of Supreme Court, Onondaga County (Paris, J.), entered August 1, 2002, that denied plaintiff's motion for partial summary judgment on the issue of liability under Labor Law 240(1).
MICHAELS AND MICHAELS, SYRACUSE (BEVERLY A. MICHAELS OF COUNSEL), FOR PLAINTIFF-APPELLANT.
COSTELLO, COONEY FEARON, PLLC, SYRACUSE (DANIEL P. FLETCHER OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
PRESENT: GREEN, J.P., HURLBUTT, KEHOE, GORSKI, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order insofar as appealed from be and the same hereby is unanimously reversed on the law without costs and the motion is granted.
Memorandum:
Plaintiff commenced this action to recover damages for injuries he sustained while demolishing a 15-foot cinder block wall. In the course of the work, the wall collapsed, crushing the six-foot scaffolding on which plaintiff was standing and causing him to fall or jump to the ground. The scaffold did not have safety railings, and plaintiff was not using safety or tie lines at the time of the accident. Supreme Court erred in denying plaintiff's motion for partial summary judgment on the issue of liability under Labor Law 240(1). Plaintiff met his initial burden of establishing that he was not furnished with appropriate safety devices within the meaning of the statute and that the absence of any such devices was a proximate cause of his injuries ( see Felker v. Corning, Inc., 90 N.Y.2d 219, 224). Defendants contend that they raised a triable issue of fact whether the actions of plaintiff were the sole proximate cause of his injuries by submitting proof establishing that, instead of approaching the demolition from the top of the 15-foot wall, plaintiff attempted to demolish it from a point well below the top. We reject that contention ( cf. Weininger v. Hagedorn Co., 91 N.Y.2d 958, 960, rearg denied 92 N.Y.2d 875).
Contrary to the further contention of defendants, they did not raise an issue of fact whether plaintiff was a recalcitrant worker. The recalcitrant worker defense "requires a showing that the injured worker refused to use the safety devices that were provided by the owner or employer" ( Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 563; see Stolt v. General Foods Corp., 81 N.Y.2d 918, 920). The defense has no application where, as here, safety devices were merely present elsewhere at the work site ( see Salotti v. Wellco, 273 A.D.2d 862). Defendants failed to submit proof in support of their contention that plaintiff was told to use a specific safety device and refused to do so ( see Hagins v. State of New York, 81 N.Y.2d 921, 922-923; Savigny v Marrano/Marc Equity Corp., 221 A.D.2d 942; Young v. Syroco, Inc., 217 A.D.2d 1011, 1012).