Opinion
December 23, 1994
Appeal from the Supreme Court, Monroe County, Ark, J.
Present — Green, J.P., Pine, Balio, Callahan and Boehm, JJ.
Order insofar as appealed from unanimously reversed on the law without costs and motion granted. Memorandum: Dennis Turner (plaintiff), an ironworker, fell 26 to 30 feet from the top of a ladder on a construction site owned by defendant. Supreme Court erred in denying plaintiffs' motion for partial summary judgment with respect to liability on the Labor Law § 240 (1) cause of action. Plaintiffs established both a violation of the statute and that the violation was the proximate cause of his injury (see, Bland v Manocherian, 66 N.Y.2d 452). A co-worker, who heard but did not see plaintiff fall, corroborated plaintiff's account of the incident and defendant offered no contradictory proof (see, Madigan v United Parcel Serv., 193 A.D.2d 1102; cf., Carlos v Rochester Gen. Hosp., 163 A.D.2d 894). Furthermore, although there was no proof that the ladder was defective, proper protection was not provided to prevent plaintiff from falling while working at an elevation. Because it is the duty of the owner, not the worker, to ensure the proper placement and use of safety devices (Heath v Soloff Constr., 107 A.D.2d 507, 510-512), any failure by plaintiff to use his own safety devices does not absolve defendant of liability (see, Allman v Ciminelli Constr. Co., 184 A.D.2d 1022; Walsh v Baker, 172 A.D.2d 1038).