Opinion
February 4, 1994
Appeal from the Supreme Court, Onondaga County, Pooler, J.
Present — Pine, J.P., Fallon, Doerr, Davis and Boehm, JJ.
Order insofar as appealed from unanimously reversed on the law without costs and motion granted. Memorandum: Supreme Court erred in denying the motion of plaintiff for partial summary judgment on the issue of liability under Labor Law § 240 (1). Plaintiff established his initial entitlement to judgment in his favor as a matter of law by the submission of proof in evidentiary form that defendants violated the statute and that the violation was a proximate cause of his injury (see, Armstrong v. Sherrill-Kenwood Water Dist., 135 A.D.2d 1081). Defendants thereafter failed to offer evidentiary proof in admissible form demonstrating that there are factual issues that require a trial (see, Zuckerman v City of New York, 49 N.Y.2d 557, 562). Defendants' reliance on Smith v. Hooker Chems. Plastics Corp. ( 89 A.D.2d 361, 365, appeal dismissed 58 N.Y.2d 824) is misplaced because there has been no showing that plaintiff refused to use the safety devices that were provided by the owner or employer (see, Gordon v Eastern Ry. Supply, 82 N.Y.2d 555; Stolt v. General Foods Corp., 81 N.Y.2d 918, 920; Hagins v. State of New York, 81 N.Y.2d 921, 922-923).