Opinion
June 16, 2000.
Appeal from Judgment of Court of Claims, Lane, J. — Summary Judgment.
PRESENT: GREEN, J.P., HAYES, KEHOE AND LAWTON, JJ.
Judgment unanimously affirmed without costs. Memorandum: Claimants commenced this action to recover for injuries sustained by Joseph J. McGuire (claimant) in a fall from a scaffolding at a construction site owned by defendants. Defendants appeal from a judgment granting claimants' motion for partial summary judgment on liability under Labor Law § 240 Lab.(1) and denying defendants' cross motion for summary judgment dismissing that claim.
Supreme Court properly denied defendants' cross motion insofar as it was based on the recalcitrant worker defense. The affidavits submitted in support of the cross motion fail to establish the elements of that defense, i.e., a purposeful or deliberate refusal to heed a specific order to use a safety device that is immediately and visibly available to the worker or actually put in place ( see, Jastrzebeski v. North Shore School Dist., 223 A.D.2d 677, 679-680, aff'd 88 N.Y.2d 946; Balthazar v. Full Circle Constr. Corp., 268 A.D.2d 96 [decided Apr. 25, 2000]; see generally, Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 562-563; Stolt v. General Foods Corp., 81 N.Y.2d 918, 920).
The court properly granted claimants' motion for partial summary judgment on liability under Labor Law § 240 Lab.(1) and properly denied defendants' cross motion insofar as it sought dismissal of that cause of action on the ground that the conduct of claimant was the sole proximate cause of his injuries. Claimants established the causal connection between the injuries and the statutory violations ( see, Felker v. Corning Inc., 90 N.Y.2d 219, 224-225; Gordon v. Eastern Ry. Supply, supra, at 561-562; Smith v. Hooker Chem. Plastics Corp., 70 N.Y.2d 994, 996, rearg denied 71 N.Y.2d 995), and defendants failed to raise a triable issue of fact on causation. There is no view of the evidence that could lead to the conclusion that defendants' statutory violations were not the cause of claimant's injuries ( see, Livecchi v. Eastman Kodak Co., 258 A.D.2d 916; Aman v. Federal Express Corp., 247 A.D.2d 879, 880; Kanney v. Goodyear Tire Rubber Co., 245 A.D.2d 1034, 1035). Moreover, defendants failed to sustain their initial burden, in support of their cross motion, of establishing that the conduct of claimant was the sole proximate cause of his injuries ( see, Lawrence v. Forest City Ratner Cos., 268 A.D.2d 380 [decided Jan. 27, 2000]; Wasilewski v. Museum of Modern Art, 260 A.D.2d 271, 271-272; Hodge v. Crouse Hinds Div. of Cooper Indus., 207 A.D.2d 1007).