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

Robert MACK and Joyce Mack, Respondents, v. The FORD MOTOR COMPANY, Appellant.  (Appeal No. 2.)

Decided: December 31, 1997

Before DENMAN, P.J., and LAWTON, HAYES, BALIO and BOEHM, JJ. Law Offices of Charles G. Dipasquale by Leo Fabrizi, Buffalo, for Defendant-Appellee. Lotempio & Brown, P.C. by Patrick Brown, Buffalo, for Plaintiffs-Respondents.

 Supreme Court properly granted plaintiffs' motion for partial summary judgment on the Labor Law § 240(1) cause of action.   Robert Mack (plaintiff) fell while walking on a three-tiered scaffold.   The level on which plaintiff was walking had no guardrail.   Although plaintiff did not use the safety equipment available at the worksite, defendant presented no evidence that plaintiff “refused” to use the safety equipment and thus was a recalcitrant worker (see, Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 562-563, 606 N.Y.S.2d 127, 626 N.E.2d 912;  Hagins v. State of New York, 81 N.Y.2d 921, 922-23, 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).

 We reject defendant's argument that plaintiff's execution of a waiver absolved defendant of liability.   That waiver is contrary to public policy because it effectively eliminates the purpose of Labor Law § 240(1), i.e., “to protect workers and to impose the responsibility for safety practices on [owners and contractors, who are] best situated to bear that responsibility” (Ross v Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 500, 601 N.Y.S.2d 49, 618 N.E.2d 82;  see, Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 513, 577 N.Y.S.2d 219, 583 N.E.2d 932).

Order unanimously affirmed without costs.


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