Opinion
February 23, 1998
Appeal from the Supreme Court, Richmond County (Leone, J.).
Ordered that the order is reversed, on the law, with costs, and the motion is granted.
In moving for partial summary judgment, the plaintiff submitted evidence indicating that he was working on a scaffold suspended by ropes from a rooftop when one of the ropes broke, causing him to fall to the ground below. The plaintiff's evidence was sufficient to establish prima facie a violation of Labor Law § 240 (1) ( see, Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555; Chaitovitz v. Lewis, 222 A.D.2d 392, Bryan v. City of New York, 206 A.D.2d 448). Although the defendant advanced a "recalcitrant worker" defense, the evidence on which the defense was based indicated that the plaintiff's employer provided him with a safety belt but then instructed him not to wear it because the rope which secured the safety belt to the roof was too short, such that the plaintiff could not stand and work on the scaffold while wearing the safety belt. Such evidence was insufficient to raise an issue of fact as to whether the employer provided adequate safety equipment or whether the plaintiff refused to use it ( see, Stolt v. General Foods Corp., 81 N.Y.2d 918, Rich v. State of New York, 231 A.D.2d 942; DiMuro v. Town of Babylon, 210 A.D.2d 373; Hall v. Cornell Univ., 205 A.D.2d 872). Because the defendant failed to raise a genuine issue of fact with regard to the plaintiff's claim pursuant to Labor Law § 240 (1), the Supreme Court should have granted the plaintiff's motion ( see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562).
Rosenblatt, J.P., Miller, Ritter and Copertino, JJ., concur.