Opinion
December 29, 1993
Appeal from the Supreme Court, Erie County, Flaherty, J.
Present — Denman, P.J., Pine, Lawton, Doerr and Boehm, JJ.
Order insofar as appealed from unanimously reversed on the law with costs and motion granted. Memorandum: Plaintiff Thomas P. Murray (plaintiff) suffered personal injuries when he fell approximately 25 feet while working at a construction site owned by defendant Niagara Frontier Transportation Authority. Defendant Concept Construction Corporation was the general contractor on the construction project. At the time of the accident, plaintiff was cutting a steel band around a bundle of lumber when a piece of lumber struck him in the chest, causing him to stumble backwards off the roof.
We agree with plaintiffs' contention that Supreme Court should have granted them partial summary judgment with respect to Labor Law § 240 (1) liability. Labor Law § 240 (1) places a nondelegable duty on owners and general contractors to provide, furnish, place and operate safety devices to protect workers at a construction site from dangers associated with elevation differentials (Rocovich v Consolidated Edison Co., 78 N.Y.2d 509, 513). An owner or general contractor's duty is not satisfied by providing safety instructions or making safety devices available to workers (Bland v Manocherian, 66 N.Y.2d 452, 461; Donovan v City of Buffalo, 185 A.D.2d 703, 704; Lickers v State of New York, 118 A.D.2d 331, 334). Although a safety line had been installed eight feet from the roof's perimeter and safety belts were made available to the workers, plaintiff was not wearing a safety belt when he fell. Because safety devices were not placed and operated so as to give proper protection to the workers, defendants are absolutely liable pursuant to Labor Law § 240 (1) for plaintiff's injuries (see, Gordon v Eastern Ry. Supply, 181 A.D.2d 990, 991, affd 82 N.Y.2d 555; Donovan v City of Buffalo, supra; Lickers v State of New York, supra, at 335; Heath v Soloff Constr., 107 A.D.2d 507, 510-511).
We reject defendants' contention that plaintiffs' motion for partial summary judgment was properly denied because a question of fact exists whether plaintiff Thomas Murray was a recalcitrant worker. There is no evidence in the record that he refused to use the safety devices on the job site (see, Laurie v Niagara Candy, 188 A.D.2d 1075; Donovan v City of Buffalo, supra; Gordon v Eastern Ry. Supply, supra).