Allan v. Rochester Institute of Technology

209 A.D.2d 929, 619 N.Y.S.2d 980

Opinion

—Order unanimously affirmed with costs. Memorandum: Supreme Court properly granted partial summary judgment to plaintiffs on the issue of defendants’ liability pursuant to Labor Law § 240 (1). William Allan, Jr. (plaintiff), an ironworker, fell approximately 30 feet when a beam upon which he was sitting became detached at one end and fell, throwing him to the ground. Plaintiff asserted that no safety devices were provided by defendants. Third-party defendants contend that a factual issue exists whether plaintiff was a recalcitrant worker.

We conclude that the evidence provided by third-party defendants, that safety belts and lines were available on the work site and that workers were told to use them, fails to raise a factual issue whether plaintiff "refused to use the safety devices that were provided by the owner or employer” under the circumstance in which plaintiff fell (Stolt v General Foods Corp., 81 NY2d 918, 920; see also, Hagins v State of New York, 81 NY2d 921; Murray v Niagara Frontier Transp. Auth., 199 AD2d 984; Laurie v Niagara Candy, 188 AD2d 1075, 1075-1076). (Appeals from Order of Supreme Court, Monroe County, Affronti, J.—Summary Judgment.) Present—Denman, P. J., Green, Balio, Doerr and Boehm, JJ.