Opinion
April 4, 1996
Appeal from the Supreme Court, New York County (Edward Greenfield, J.).
The details of the alleged accident, as provided only by plaintiff, are vague ( see, Muhammad v. Hyman Constr., 216 A.D.2d 206). While a failure to provide overhead protection from falling debris that in turn causes a fall from a ladder may constitute a per se violation of the statute ( see, Guillory v. Nautilus Real Estate, 208 A.D.2d 336, appeal dismissed and lv denied 86 N.Y.2d 881), issues of fact remain as to the circumstances under which plaintiff was performing the asbestos removal work on a ladder, instead of from scaffolding provided by defendant Acoustic Technology Corp. Plaintiff's statement that there was no scaffolding in the area in which he was working when the accident occurred was contradicted by an Acoustic supervisor. Moreover, plaintiff did not explain why he proceeded to use a ladder when he knew that only scaffolding was being utilized by other workers. Thus, as the IAS Court noted, a question of fact exists as to whether plaintiff acted as a "`recalcitrant worker'", i.e., one who refused to use the proper equipment that was provided ( see, Stolt v. General Foods Corp., 81 N.Y.2d 918, 920), in which case strict liability would not be imposed.
Concur — Sullivan, J.P., Rosenberger, Wallach, Kupferman and Williams, JJ.