STEWART v. PLAYLAND CENTER INC (2004)

Supreme Court, Appellate Division, First Department, New York.

Orlando STEWART, et al., Plaintiffs-Appellants, v. PLAYLAND CENTER, INC., et al., Defendants-Respondents.
Discover General Contracting Corp., Third-Party Plaintiff, v. Mount Vernon Interiors, Inc., Third-Party Defendant-Respondent. [And Another Action].

Decided: June 10, 2004

BUCKLEY, P.J., LERNER, FRIEDMAN, MARLOW, SWEENY, JJ.

Ronemus & Vilensky, New York (Robin Mary Heaney of counsel), for appellants. Gary A. Cusano, Tarrytown, for Playland Center, Inc., et al., respondents. Faust Goetz Schenker & Blee LLP, New York (Erika C. Aljens of counsel) for Mount Vernon Interiors, Inc., respondent.

Order, Supreme Court, Bronx County (Nelson S. Roman, J.), entered on or about June 4, 2003, which, inter alia, denied plaintiff's motion for summary judgment as to liability upon his Labor Law § 240(1) claim, unanimously affirmed, without costs.

Plaintiff, while employed as a carpenter at a renovation project, fell from a ladder he was using in framing a wall. While it is clear that the ladder, which had a defective rung, did not provide protection in accordance with Labor Law § 240(1), the testimony of plaintiff's employer to the effect that shortly before the accident plaintiff had been specifically instructed to use an available scissor lift instead of a ladder to perform his assigned task, was sufficient to raise a triable issue as to whether plaintiff was a “recalcitrant worker” (see Gordon v. E. Ry. Supply, Inc., 82 N.Y.2d 555, 562, 606 N.Y.S.2d 127, 626 N.E.2d 912).

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