VACCA v. LANDAU INDUSTRIES LTD (2004)

Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered on or about January 3, 2003, which, to the extent appealed from, denied plaintiff's motion for partial summary judgment on the issue of liability, for violation of Labor Law § 240(1), unanimously reversed, on the law, without costs, the motion granted and the matter remanded for further proceedings.

In the course of installing a new roof to the dining hall at Wagon Road Camp, a youth summer camp owned and operated by the Children's Aid Society, plaintiff, an employee of nonparty roofing subcontractor FED Realty Maintenance, Ltd. (FRM), sustained personal injuries when he fell approximately 20 feet to the ground on October 31, 1998.   At the time of the incident, it is undisputed that plaintiff was not wearing a safety harness.

 It is well settled in this Department that an immediate instruction is a requirement of the “recalcitrant worker” defense (see Olszewski v. Park Terrace Gardens, Inc., 306 A.D.2d 128, 763 N.Y.S.2d 246;  DePalma v. Metropolitan Trans. Auth., 304 A.D.2d 461, 462, 759 N.Y.S.2d 37;  Laquidara v. HRH Contr. Corp., 283 A.D.2d 169, 170, 724 N.Y.S.2d 53;  Sanango v. 200 E. 16th St. Hous. Corp., 290 A.D.2d 228, 736 N.Y.S.2d 321).   In the instant matter, we find no question that the recalcitrant worker defense is not applicable since defendant Lexcore Associates, Inc. (Lexcore), the general contractor, failed to demonstrate that plaintiff had “disobeyed an immediate instruction to use a harness or other actually available safety device” (Sanango v. 200 E. 16th St. Hous. Corp., id.).   We find that the statement by FRM's site superintendent, Dominic Rubio, contained in his affidavit that “[a]t some time prior to 10/31/98, the exact date of which [he] did not recall,” he instructed plaintiff to wear a safety harness is far too equivocal to support the recalcitrant worker defense (cf. Miraglia v. H & L Holding Corp., 306 A.D.2d 58, 759 N.Y.S.2d 678 [one day before the accident, worker was repeatedly instructed to wear safety device] ).

We have considered defendants' remaining contentions and find them unavailing.