SZUBA v. MARC EQUITY PROPERTIES INC 81 (2005)

 Plaintiff, an employee of third-party defendants, commenced this common-law negligence and Labor Law action to recover damages for injuries he sustained when he fell as he was cutting vent holes into the felt of a new roof of a house owned by defendants.   Supreme Court erred in denying plaintiff's motion for partial summary judgment on the issue of defendants' liability on the Labor Law § 240(1) claim.   It is undisputed that the area in which plaintiff was working was not protected by the only safety device used on the site, two by fours attached to the edge of the roof.   The presence of safety devices somewhere on the work site does not discharge the owner's duty to provide proper protection to workers (see Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513, 523-524, 493 N.Y.S.2d 102, 482 N.E.2d 898, rearg. denied 65 N.Y.2d 1054, 494 N.Y.S.2d 1033, 484 N.E.2d 1055;  Young v. Syroco, Inc., 217 A.D.2d 1011, 629 N.Y.S.2d 931;  Howell v. Rochester Inst. of Tech., 191 A.D.2d 1006, 594 N.Y.S.2d 513).   Plaintiff met his initial burden of establishing that he was not furnished with appropriate safety devices where he was working and that the absence of appropriate safety devices was a proximate cause of his injuries (see Howe v. Syracuse Univ., 306 A.D.2d 891, 760 N.Y.S.2d 922).

 In opposition to the motion, defendants failed to raise an issue of fact whether plaintiff was a recalcitrant worker.   That defense has no application where safety devices were merely present somewhere at the work site (see Howe, 306 A.D.2d at 892, 760 N.Y.S.2d 922;  Salotti v. Wellco, Inc., 273 A.D.2d 862, 709 N.Y.S.2d 733).   An instruction by an employer or owner to avoid “unsafe practices is not a ‘safety device’ in the sense that plaintiff's failure to comply with the instruction is equivalent to refusing to use available, safe and appropriate equipment” (Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 563, 606 N.Y.S.2d 127, 626 N.E.2d 912;  see Stolt v. General Foods Corp., 81 N.Y.2d 918, 920, 597 N.Y.S.2d 650, 613 N.E.2d 556).   Consequently, we reverse the order insofar as appealed from and grant plaintiff's motion for partial summary judgment on the Labor Law § 240(1) claim.

It is hereby ORDERED that the order insofar as appealed from be and the same hereby is unanimously reversed on the law with costs and the motion is granted.

MEMORANDUM: