Van Alstyne v. New York State Thruway Authority

244 A.D.2d 978, 665 N.Y.S.2d 220, 1997 N.Y. App. Div. LEXIS 12408

Opinion

—Order unanimously affirmed without costs. Memorandum: 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 NY2d 513, 518-519, rearg denied 65 NY2d 1054). 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 NY2d 509, 513). There is no evidence that claimant purposefully refused to use the safety equipment that was provided (see, Gordon v Eastern Ry. Supply, 82 NY2d 555, 562-563). (Appeal from Order of Court of Claims, Midey, Jr., J.—Summary Judgment.) Present—Law-ton, J. P., Hayes, Doerr, Balio and Fallon, JJ.