Opinion
September 30, 1994
Appeal from the Supreme Court, Erie County, Wolfgang, J.
Present — Denman, P.J., Pine, Lawton, Wesley and Davis, JJ.
Order unanimously reversed on the law without costs and motion granted. Memorandum: Plaintiff was injured while working for Big G Roofing, the roofing subcontractor hired by Forbes Homes, Inc., the general contractor, in connection with the construction of a home located at 17 Mill Valley Drive, Williamsville, New York. According to plaintiff, he was carrying roofing materials along the peak of the roof when his foot slipped and he fell to the ground. The record reveals that no safety devices were so placed "as to give proper protection" to plaintiff (Labor Law § 240).
Supreme Court erred in denying the motion of plaintiff for partial summary judgment on his Labor Law § 240 (1) cause of action. Plaintiff demonstrated, by the submission of evidentiary proof in admissible form, that defendants breached their nondelegable duty imposed by the statute and that their breach of that duty was a proximate cause of plaintiff's injuries (see, Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 513). The argument of the third-party defendant that plaintiff was not engaged in a work-related activity at the time he fell lacks merit (see, Madigan v. United Parcel Serv., 193 A.D.2d 1102, 1103; see also, Hagins v. State of New York, 81 N.Y.2d 921; Reeves v Red Wing Co., 139 A.D.2d 935, 936). Additionally, the mere presence of safety devices at the work site does not defeat plaintiff's entitlement to the requested relief (see, Bland v Manocherian, 66 N.Y.2d 452, 460-461; Haystrand v. County of Ontario, 207 A.D.2d 978 [decided herewith]; Heath v. Soloff Constr., 107 A.D.2d 507).
Finally, the so-called recalcitrant worker defense recognized in Smith v. Hooker Chems. Plastics Corp. ( 89 A.D.2d 361, appeal dismissed 58 N.Y.2d 824) may not be invoked. Defendants contend that plaintiff twice disobeyed instructions to return to the peak of the roof and remain there until the scaffolding was put in place. The Court of Appeals has held, however, that "an instruction by an employer to avoid using unsafe equipment or engaging in unsafe practices is not a `safety device' in the sense that plaintiff's failure to comply with the instruction is equivalent to refusing to use available, safe and appropriate equipment" (Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 563, citing Stolt v. General Foods Corp., 81 N.Y.2d 918, 920; see also, Hagins v. State of New York, supra, at 922-923; Hoffmeister v. Oaktree Homes, 206 A.D.2d 921; Madigan v United Parcel Serv., supra, at 1103). Moreover, "[e]vidence of such instructions does not, by itself, create an issue of fact sufficient to support a recalcitrant worker defense" (Gordon v Eastern Ry. Supply, supra, at 563).