Lastly, Defendant Kasper claims that Plaintiff was the sole proximate cause of his accident, to which the Court rejected above as it is clear that the scaffolding collapsed which makes Plaintiff not the sole cause. While Labor Law § 240(1) “imposes absolute liability on employers who fail to provide their employees with proper safety devices, the statutory protection does not extend to workers who have adequate and safe equipment available to them but refuse to use it.' “ (Tennant v. Curcio, 237 A.D.2d 733, 734 [3d Dept 1997], quoting Smith v. Hooker Chems. & Plastics Corp., 89 A.D.2d 361, 366 [4th Dept 1982], appeal dismissed 58 N.Y.2d 824 [1983] [internal citations omitted]; see also Gordon, 82 N.Y.2d at 563 [noting that it is “well settled that an injured worker's contributory negligence is not a defense to a Labor Law § 240(1) claim, [but] the recalcitrant worker' defense may allow a defendant to escape liability”].) The recalcitrant worker defense “requires a showing that the injured worker refused to use the safety devices that were provided by the owner or employee.”
The sole exception to this imposition of absolute liability arises when the defendant is able to establish that the injured worker deliberately refused to use appropriate safety devices that he was specifically instructed to use and that were specifically available to him. Success on this "recalcitrant worker" defense requires a showing that the safety device in question was available and visible at the immediate worksite of the injured employee, that the employee was directed to use the device, and that the employee deliberately refused to use it (see, Kaffke v. New York State Elec. Gas Corp., 257 A.D.2d 840; see also, Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 563; Tennant v. Curcio, 237 A.D.2d 733; Watso v. Metropolitan Life Ins. Co., 228 A.D.2d 883; Jastrzebski v. North Shore School Dist., 223 A.D.2d 677, affd 88 N.Y.2d 946; Hall v. Cornell Univ., 205 A.D.2d 872). Thus, this defense is not established merely by showing that the worker failed to comply with an employer's instruction to avoid using unsafe equipment or engaging in unsafe practices, or to use a particular safety device (see,Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 563,supra; Stolt v. General Foods Corp., 81 N.Y.2d 918, 920; Hagins v. State of New York, 81 N.Y.2d 921, 922; Tennant v. Curcio, 237 A.D.2d 733, 734, supra; Fichter v. Smith, 259 A.D.2d 1023, lv dismissed in part and denied in part, 93 N.Y.2d 994), and "`the mere presence of safety devices at the worksite does not diminish [a] defendant's liability'" (Hall v. Cornell Univ., 205 A.D.2d 872, 874,supra, quoting Neville v. Deters, 175 A.D.2d 597).
Labor Law § 240 (1) provides, in pertinent part, that: "All contractors and owners and their agents * * * in the erection, demolition, [or] repairing * * * of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding [and] ladders * * * which shall be so constructed, placed and operated as to give proper protection to a person so employed" (Labor Law § 240 [1]). The statute "imposes absolute liability on owners, contractors and their agents for any breach of the statutory duty which has proximately caused injury" (Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 559; see, Tennant v. Curcio, 237 A.D.2d 733, 734). It is intended to protect employees from injuries sustained as a result of exposure to elevation-related hazards (see, Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 500; Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 514). Since the record discloses that claimant's injuries occurred as the result of an elevation-related hazard against which the State failed to provide proper protection, we conclude that the Court of Claims properly granted claimants' motion for summary judgment.
This case is analogous to Tennant v Curcio (237 A.D.2d 733, 733 [3d Dept 1997]), where summary judgment on § 240 (1) was granted to the plaintiff, whose fall off a ladder was attributed to the absence of a device to keep the ladder from sliding to the side. The plaintiff was assigned to help a coworker, who decided that the ladder they were using did not need to be secured.
See Williams v. Town of Pittstown, 100 A.D.3d 1250, 1252 (3d Dep't 2012). Torres's instruction to have Plaintiff and Alvarado support each other (when necessary) when both were responsible for completing asbestos removal at different ends of a forty feet hallway does not constitute refusal of an available and visible safety device. See Tennant v. Curcio, 237 A.D.2d 733, 734-35 (3d Dep't 1997) ("employer's general instruction that the workers not utilize the ladder without first securing it to the building is insufficient to create a factual issue"); see also Gordon v. Eastern Ry. Supply, Inc., 82 N.Y.2d 555, 563 (1993) (noting that it is well settled that an instruction by an employer or owner to avoid unsafe practices is not a safety device in that plaintiff's failure to comply is not equivalent to refusing to use available, safe, and appropriate equipment); Szuba v. Marc Equity Properties, Inc., 19 A.D.3d 1176, 1177 (4th Dep't 2005) ("[The recalcitrant worker] defense has no application where safety devices were merely present somewhere at the work site."). Moreover, even accepting Defendants' claim, Plaintiff's failure to ask Alvarado for assistance (the coworker who was also on a ladder), at most demonstrates contributory or comparative negligence; defenses unavailable under the statute.
ality at the time of the accident does not aid defendants, as there is no dispute "that no one was holding the ladder from which plaintiff fell when it suddenly shifted or wobbled, and that no safety devices were provided to prevent the ladder from slipping or plaintiff from falling if it did" (Picano v Rockefeller Ctr. N., Inc., 68 A.D.3d 425, 425 [1st Dept 2009]; see Pinzon v Royal Charter Props., Inc., 211 A.D.3d 442, 443 [1st Dept 2022]; Begeal v Jackson, 197 A.D.3d at 1419). Nor is there some indication that plaintiff was recalcitrant in deliberately refusing available safety devices, as Harrell's testimony concerning the existence of a rope somewhere in the warehouse is insufficient to establish that such equipment was "available, visible and in place at the worksite" (Kouros v State of New York, 288 A.D.2d 566, 567 [3d Dept 2001]; see Borelli v JB IV, LLC, 209 A.D.3d 1121, 1123 [3d Dept 2022]; Hogan v 590 Madison Ave., LLC, 194 A.D.3d 570, 571 [1st Dept 2021]; Tennant v Curcio, 237 A.D.2d 733, 735 [3d Dept 1997]; compare Beardslee v Cornell Univ., 72 A.D.3d 1371, 1372 [3d Dept 2010]). Further, we find that the proof does not establish that plaintiff was solely at fault for his fall.
ndant had a heavy chain on its property, the evidence is unclear as to whether defendant had eyebolts of the proper size. Plaintiff considered that method of lifting, but ruled it out because the bolt holes were rusty. One of defendant's employees testified that after plaintiff's accident, he put the counterweight back on the Gradall using the chain and eyebolts, but he had to spend an hour cleaning and repairing the bolt holes so they could accept the eyebolts. Although in hindsight it may have been better for plaintiff to repair the bolt holes and use a chain to lift the counterweight, defendant did not demonstrate that plaintiff was a recalcitrant worker by choosing to use an alternate method rather than the eyebolt method that was not immediately available at the time he was performing the task that caused his injury ( see Powers v. Del Zotto & Son Bldrs., 266 A.D.2d 668, 670, 698 N.Y.S.2d 74 [1999];see also Kouros v. State of New York, 288 A.D.2d 566, 567, 732 N.Y.S.2d 277 [2001];Tennant v. Curcio, 237 A.D.2d 733, 734, 655 N.Y.S.2d 118 [1997] [finding owner's offer to fashion a securing bracket not equivalent to supplying a safety device] ). Accordingly, plaintiffs were entitled to partial summary judgment as to liability on their Labor Law § 240(1) cause of action.
Plaintiff alleges that to accomplish the job, he was therefore required to climb onto the roof. Plaintiff's testimony at two depositions that he could not get the ladder into position (1) because there was shrubbery blocking access, and (2) because there was accumulated debris in the alleyway, does not require a finding that plaintiff was a "recalcitrant worker", to whom the protections of Labor Law § 240(1) do not apply. The recalcitrant worker defense requires a showing of the "injured worker's deliberate refusal to use available and visible safety devices in place at the work station" (emphasis supplied) (Powers v. Del Zotto Sons, 266 A.D.2d 668, 671; Kaffke v. New York State Elec. Gas Corp., 257 A.D.2d 840; Davis v. Bd. of Trustees of Hicksvillle Pub. Lib. et. al., 240 A.D.2d 461;Tennant v. Curcio, 237 A.D.2d 733; Heath v. Soloff Constr. Co., 107 A.D.2d 507). There was no evidence here that plaintiff deliberately refused to use a safety device. Accordingly, the claims under Labor Law §§ 240(1) and 241(6)are reinstated.
This is the precise type of special elevation-related hazard to which the nondelegable duty of Labor Law § 240 Lab. attaches (see, Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 560-562; Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 500-501; cf., Misseritti v. Mark IV Constr. Co., 86 N.Y.2d 487). Defendant and Reutter contend that they raised a question of fact regarding the recalcitrant worker defense which would allow them to escape the absolute liability imposed by Labor Law § 240 Lab. (1). Success on this "recalcitrant worker" defense requires a showing that the safety device in question was both available and visibly in place at the immediate worksite of the injured employee who deliberately refused to use it (see, Kaffke v. New York State Elec. Gas Corp., 257 A.D.2d 840; see also, Gordon v. Eastern Ry. Supply, supra, at 563; Tennant v. Curcio, 237 A.D.2d 733; Watso v. Metropolitan Life Ins. Co., 228 A.D.2d 883; Jastrzebski v. North Shore School Dist., 223 A.D.2d 677, affd 88 N.Y.2d 946; Hall v. Cornell Univ., 205 A.D.2d 872). Thus, this defense is not established merely by showing that the worker failed to comply with an employer's instruction to avoid using unsafe equipment or engaging in unsafe practices, or to use a particular safety device (see,Gordon v. Eastern Ry. Supply, supra, at 563; Stolt v. General Foods Corp., 81 N.Y.2d 918, 920; Hagins v. State of New York, 81 N.Y.2d 921, 922; Tennant v. Curcio, supra, at 734; Fichter v. Smith, 259 A.D.2d 1023,lv dismissed, lv denied 93 N.Y.2d 994), and "`the mere presence of safety devices at the worksite does not diminish [a] defendant's liability'" (Hall v. Cornell Univ., supra, at 874, quoting Neville v. Deters, 175 A.D.2d 597, 597).
Plaintiff was provided with no safety devices to guard against the type of accident that occurred, and, although plaintiff admitted that it was his company's policy to tie off ladders, plaintiff was in the process of tying off the ladder when this accident occurred. In any event, the fact that plaintiff may have received general safety instructions that were not followed is not sufficient to raise an issue of fact whether plaintiff was a recalcitrant worker ( see, Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 562-563; Tennant v. Curcio, 237 A.D.2d 733, 734; Savigny v. Marrano/Marc Equity Corp., 221 A.D.2d 942). The court further erred in denying the cross motion of third-party defendant for summary judgment dismissing the third-party complaint.