SALOTTI v. WELLCO INC (2000)

 Plaintiff contends that Supreme Court erred in denying his motion for partial summary judgment on liability under Labor Law § 240(1) because there are no triable issues of fact concerning whether plaintiff was a recalcitrant worker or whether his actions were the sole proximate cause of his injuries.   We agree with plaintiff that the recalcitrant worker defense lacks merit as a matter of law.   A defendant does not establish that defense merely by showing that plaintiff was instructed to avoid an unsafe practice (see, Gordon v. Eastern Railway Supply, 82 N.Y.2d 555, 563, 606 N.Y.S.2d 127, 626 N.E.2d 912;  Hagins v. State of New York, 81 N.Y.2d 921, 922-923, 597 N.Y.S.2d 651, 613 N.E.2d 557).   Further, it is well established that the presence of a safety device elsewhere at the job site will not defeat liability (see, Kaffke v. New York State Elec. & Gas Corp., 257 A.D.2d 840, 841, 685 N.Y.S.2d 305;  see generally, Heath v. Soloff Constr., 107 A.D.2d 507, 512, 487 N.Y.S.2d 617).   In asserting a recalcitrant worker defense, a defendant must establish that plaintiff deliberately or purposely refused an order to use safety devices actually put in place or made available by the owner or contractor (see, Hagins v. State of New York, supra, at 922-923, 597 N.Y.S.2d 651, 613 N.E.2d 557;  Stolt v. General Foods Corp., 81 N.Y.2d 918, 920, 597 N.Y.S.2d 650, 613 N.E.2d 556;  Jastrzebski v. North Shore School Dist., 223 A.D.2d 677, 679-680, 637 N.Y.S.2d 439, affd. 88 N.Y.2d 946, 647 N.Y.S.2d 708, 670 N.E.2d 1339;  Kulp v. Gannett Co. [appeal No. 1], 259 A.D.2d 969, 687 N.Y.S.2d 840).

The court nonetheless properly denied plaintiff's motion.   The divergent accounts of the accident set forth in plaintiff's papers create triable issues of fact concerning the manner in which the accident occurred (see, Smith v. Torre, 247 A.D.2d 896, 668 N.Y.S.2d 861;  Abramo v. Pepsi-Cola Buffalo Bottling Co., 224 A.D.2d 980, 981, 637 N.Y.S.2d 840), in particular, whether defendant violated the statute and whether such alleged violation was a proximate cause of plaintiff's injuries, or whether plaintiff's actions were the sole proximate cause of the injuries (see, Weininger v. Hagedorn & Co., 91 N.Y.2d 958, 960, 672 N.Y.S.2d 840, 695 N.E.2d 709, rearg. denied 92 N.Y.2d 875, 677 N.Y.S.2d 777, 700 N.E.2d 317;  Hilbert v. Sahlen Packing Co., 267 A.D.2d 940, 700 N.Y.S.2d 890).

Order unanimously affirmed without costs.

MEMORANDUM: