KULP v. GANNETT COMPANY INC (1999)

Supreme Court properly denied plaintiff's motion for partial summary judgment on liability pursuant to Labor Law § 240(1).   Plaintiff submitted proof that the safety harness and lanyard provided by his employer, third-party defendant, F.L. Heughes & Co., Inc. (Heughes), could not be tied off while he was performing his work and that no other safety devices were available to prevent him from falling.   That evidence satisfied his “burden of establishing, prima facie, that the safety device provided by [Heughes] was not so placed as to give proper protection to [plaintiff]” (Watso v. Metropolitan Life Ins. Co., 228 A.D.2d 883, 884, 644 N.Y.S.2d 399).   In opposition to the motion, however, Heughes submitted proof that plaintiff was able to tie off to a safety line or a beam and that plaintiff was instructed at weekly safety meetings to tie off at all times when working at a height.   That evidence “tended to demonstrate that [plaintiff], rather than being unable to tie off, purposefully did not do so” (Watso v. Metropolitan Life Ins. Co., supra, at 884, 644 N.Y.S.2d 399), and raised triable issues of fact whether the safety device provided to plaintiff afforded proper protection and whether plaintiff was a recalcitrant worker to whom the protections of Labor Law § 240(1) do not apply (see, Harrington v. State of New York, 255 A.D.2d 819, 681 N.Y.S.2d 122;  Job v. 1133 Bldg. Corp., 251 A.D.2d 459, 674 N.Y.S.2d 710;  Isnardi v. Genovese Drug Stores, 242 A.D.2d 671, 672, 662 N.Y.S.2d 792;  Watso v. Metropolitan Life Ins. Co., supra, at 884-885, 644 N.Y.S.2d 399).

Order unanimously affirmed without costs.

MEMORANDUM: