VAN ALSTYNE v. NEW YORK STATE THRUWAY AUTHORITY (1997)

 The Court of Claims properly granted claimants' motion for summary judgment on liability under Labor Law § 240(1) and denied defendant's cross motion for summary judgment based upon the recalcitrant worker defense.   Edward Van Alstyne, Jr. (claimant), was injured in a fall from an elevated girder at the site of a bridge rehabilitation project, and defendant asserted the recalcitrant worker defense based upon the failure of claimant to tie-off his lanyard on the available static lines.  Labor Law § 240(1) imposes absolute liability where, as here, an injured worker establishes a violation of the statute and that the violation was a proximate cause of the injury (see, Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513, 518-519, 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).   Any negligence on the part of the injured worker will not relieve a defendant of its absolute liability (see, Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 513, 577 N.Y.S.2d 219, 583 N.E.2d 932).   There is no evidence that claimant purposefully refused to use the safety equipment that was provided (see, Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 562-563, 606 N.Y.S.2d 127, 626 N.E.2d 912).

Order unanimously affirmed without costs.

MEMORANDUM: