HARRIS v. RODRIGUEZ (2001)

Order, Supreme Court, Bronx County (Barry Salman, J.), entered June 9, 1999, which granted the motion of defendant third-party plaintiff Time Warner of New York City, the cross motion of defendant Miguel Rodriguez, and the cross motion of third-party defendant Queens Cable Contractors (QCC), for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion and cross motions denied and the complaint reinstated.

Plaintiff asserts that he fell when the roof of a shed upon which he was sitting, while attaching television cable to a box on an adjacent pole, collapsed.   Plaintiff's employer supplied him with a 24 foot ladder, which plaintiff testified that he wanted to use for the job.   However, he and his partner left the ladder on their truck on the street, because they could not safely transport it either through the house or through the alley way, to the cable pole behind the house.   Plaintiff alleges that to accomplish the job, he was therefore required to climb onto the roof.

 Plaintiff's testimony at two depositions that he could not get the ladder into position (1) because there was shrubbery blocking access, and (2) because there was accumulated debris in the alleyway, does not require a finding that plaintiff was a “recalcitrant worker”, to whom the protections of Labor Law § 240(1) do not apply.   The recalcitrant worker defense requires a showing of the “injured worker's deliberate refusal to use available and visible safety devices in place at the work station” (emphasis supplied) (Powers v. Del Zotto & Son, 266 A.D.2d 668, 671, 698 N.Y.S.2d 74;  Kaffke v. New York State Elec. & Gas Corp., 257 A.D.2d 840, 685 N.Y.S.2d 305;  Davis v. Bd. of Trustees of Hicksville Pub. Lib. et al., 240 A.D.2d 461, 658 N.Y.S.2d 648;  Tennant v. Curcio, 237 A.D.2d 733, 655 N.Y.S.2d 118;  Heath v. Soloff Constr. Co., 107 A.D.2d 507, 487 N.Y.S.2d 617).   There was no evidence here that plaintiff deliberately refused to use a safety device.   Accordingly, the claims under Labor Law §§ 240(1) and 241(6) are reinstated.