AKINS v. CENTRAL NEW YORK REGIONAL MARKET AUTHORITY

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

Rodney AKINS and Josette Akins, Plaintiffs-Respondents, v. CENTRAL NEW YORK REGIONAL MARKET AUTHORITY, Peter A. Salato, Inc., Defendants-Appellants, et al., Defendant.

Decided: September 29, 2000

PRESENT:  GREEN, J.P., PINE, HURLBUTT, KEHOE and LAWTON, JJ. Daniel A. Bronk, Syracuse, for Defendants-Appellants. Edward S. Leone, Syracuse, for Plaintiffs-Respondents.

Plaintiffs commenced this action seeking damages for personal injuries sustained by Rodney Akins (plaintiff) in a fall through the roof of a building undergoing renovation.   Central New York Regional Market Authority, the property owner, and Peter A. Salato, Inc., the general contractor (defendants), appeal from an order insofar as it granted plaintiffs' motion for partial summary judgment on the issue of liability under Labor Law § 240(1) and denied that part of their cross motion for summary judgment dismissing that claim.

 Supreme Court properly granted plaintiffs' motion.   Contrary to defendants' contention, plaintiff is not a recalcitrant worker to whom the protections of Labor Law § 240(1) do not apply.   In order to establish a recalcitrant worker defense, defendants must show that plaintiff deliberately refused to use available safety devices provided by the owner or contractor (see, Hagins v. State of New York, 81 N.Y.2d 921, 922-923, 597 N.Y.S.2d 651, 613 N.E.2d 557;  Stolt v. General Foods Corp., 81 N.Y.2d 918, 920, 597 N.Y.S.2d 650, 613 N.E.2d 556;  Salotti v. Wellco, Inc., 273 A.D.2d 862, 709 N.Y.S.2d 733).   Defendants did not establish that defense merely by showing that plaintiff was instructed to avoid an unsafe practice (see, Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 563, 606 N.Y.S.2d 127, 626 N.E.2d 912;   Hagins v. State of New York, supra, at 922-923, 597 N.Y.S.2d 651, 613 N.E.2d 557).   Moreover, the presence of safety devices elsewhere at the job site will not defeat liability (see, Salotti v. Wellco, Inc., supra;  Kaffke v. New York State Elec. & Gas Corp., 257 A.D.2d 840, 841, 685 N.Y.S.2d 305).   Additionally, defendants failed to raise an issue of fact with respect to plaintiffs' assertion that the safety lines provided at the job site were too short to enable workers to attach them to a safety cable or any other fixed point of attachment and to allow the workers to walk and work safely on all parts of the roof (see, Singh v. Fontaine, 247 A.D.2d 604, 605, 669 N.Y.S.2d 231;  Rich v. State of New York, 231 A.D.2d 942, 942-943, 648 N.Y.S.2d 195).

Order unanimously affirmed with costs.

MEMORANDUM: