New York Construction Accident Law-The History of and Current State of The Recalcitrant Worker Defense

By Anthony Gair;

(A) THE RECALCITRANT WORKER DEFENSE
(1) A BRIEF HISTORY

In order to understand the break from precedent by the Court of Appeals in 2004, it is useful to understand the history of the recalcitrant worker defense. For years the leading recalcitrant worker case was Smith v. Hooker Chemicals and Plastics Corp., 89 A.D.2d 361, 455 N.Y.S.2d 446 (4th dept. 1982); app. dismd. 58 N.Y.2d 824. The rule enunciated therein was that the “….the statutory protection (afforded by §240) does not extend to workers who have adequate and safe equipment available to them but refuse to use it.”

The facts in Smith are important in order to understand how the Court of Appeals in decisions between 2004 and 2009 expanded the reach of the recalcitrant worker defense by relying on cases such as Smith, while ignoring the facts upon which the holdings were based, thereby in effect failing to follow long established precedent.
For example, in Smith the plaintiff went up on a roof despite the fact that safety equipment had been removed and after a co-worker had refused to do so unless the safety equipment was put back in place.

The Court’s holding was thus based on the fact the plaintiff knowingly chose not to use safety devices which he knew had been in place and were readily available. His accident was also contemporaneous in time with his refusal to use the safety devices which his co-worker insisted be in place before the co-worker got on the roof.

The Court of Appeals followed the reasoning of Smith for years, as did numerous Appellate Division cases.

In Gordon v. Eastern Railway Supply, Inc., 82 N.Y.2d 555, 606 N.Y.S.2d 127 (1993) the plaintiff was standing on a ladder leaning against a railroad car while using a hand-held sandblaster to clean the exterior of the car. He was injured when he fell from the ladder. In rejecting the defendant’s claim that the plaintiff was a recalcitrant worker, the Court stated:
“Defendants’ claim here rests on their contention that plaintiff was repeatedly instructed to use a scaffold, not a ladder, when sandblasting railroad cars. We have held, however, that an instruction by an employer or owner to avoid using unsafe equipment or engaging in unsafe practices is not a ‘safety device’ in the sense that plaintiff’s failure to comply with the instruction is equivalent to refusing to use available, safe and appropriate equipment (Stolt v. General Foods Corp., supra; see also, Hagins v. State of New York, 81 NY2d 921, 922-923). Evidence of such instructions does not, by itself, create an issue of fact sufficient to support a recalcitrant worker defense.”

In Hagins v. State of New York, 81 N.Y.2d 921, 597 N.Y.S.2d 651 (1993), the claimant was injured when he fell from the top of an unfinished abutment wall that rose fifteen feet above a road construction site. The Court rejected the recalcitrant worker defense since the claimant had not refused to use available safety devices:
“Claimant was properly granted partial summary judgment on the issue of the State’s liability under Labor Law §240(1). The State’s allegations that claimant had repeatedly been told not to walk across the abutment are not alone sufficient to create a triable issue of fact under the ‘recalcitrant worker’ doctrine that was recognized in Smith v. Hooker Chems. & Plastics Corp., 89 AD2d 361, appeal dismissed 58 NY2d 824, since that defense is limited to cases in which a worker has been injured as a result of a refusal to use available safety devices provided by the employer or owner (see, Stolt v. General Foods Corp., 81 NY2d 918 (decided herewith). Furthermore, the State cannot rely on claimant’s own negligence in using an unsafe route to cross the road as a ‘supervening cause’ of his injuries, since the accident was plainly the direct result of the failure to supply guardrails or other appropriate safety devices (see, id.).”

Similarly, in Stolt v. General Foods Corp., 81 N.Y.2d 918, 597 N.Y.S.2d 650 (1993) the Court rejected the recalcitrant worker defense where a plaintiff fell from a ladder which had broken a week earlier and plaintiff had been instructed not to use it unless a co-worker was present to secure it. Despite this, the plaintiff attempted to climb the ladder when his supervisor left the work area. The Court specifically held that:
“…the so-called ‘recalcitrant worker’ defense cannot be invoked in these circumstances (see, Smith v. Hooker Chems. & Plastics Corp., 89 AD2d 361, appeal dismissed 58 NY2d 824). That defense, which has been widely recognized by the lower courts in this State (e.g. Koumianos v. State of New York, 141 AD2d 189; Morehouse v. Daniels, 140 AD2d 974;Cannata v. One Estate, 127 AD2d 811; Lickers v. State of New York, 118 AD2d 331; Heath v. Soloff Constr., 107 AD2d 507), requires a showing that the injured worker refused to use the safety devices that were provided by the owner or employer (see, Hagins v. State of New York, 81 NY2d 921 [decided herewith]). It has no application where, as here, no adequate safety devices were provided (see, Zimmer v. Chemung County Performing Arts, 65 NY2d 513, 525-526[Simons, J., concurring]). We note that an instruction by the employer or owner to avoid using unsafe equipment or engaging in unsafe practices is not itself a ‘safety device’.”

Jastrezebski v. North Shore School District, 223 A.D.2d 677, 637 N.Y.S.2d 439 (2d Dept. 1996) aff’d. 88 N.Y.2d 946, 647 N.Y.S.2d 708, in which the Court dismissed plaintiff’s complaint based on the recalcitrant worker defense, is instructive in that it clearly states what had to be established to prevail upon the defense. The plaintiff was on a ladder and in the process of affixing a piece of plywood to a wall when his supervisor told him to get off the ladder. After he did so the supervisor told him the ladder was no good, and told him to use a scaffold which was already in place. After the supervisor left, the plaintiff climbed back on the ladder from which he then fell.
The Court distinguished Gordon as follows:

“Moreover, in the instant case, Seider admonished the plaintiff and, just prior to the accident, gave him very specific orders not to use the ladder and to use the available scaffold. This immediate and active direction by the supervisor is significantly different from the distant and passive instruction in Gordon. In Gordon, the evidence indicated only that the plaintiff had been given general safety instructions in the past which had included warnings that the use of a ladder while sandblasting was not proper. There was no evidence in Gordon that the plaintiff had knowingly refused a direct order as the plaintiff in this case had. The instant case involves more than an instruction to avoid using unsafe equipment or to avoid engaging in unsafe practices; rather, the plaintiff here refused to use the available, safe, and appropriate equipment.” (emphasis supplied).

Thus, on the basis of the above cases and numerous Appellate Division decisions, it seemed clear that in order to prevail on the recalcitrant worker defense, a defendant had to establish that a direct, immediate order not to use the device was given which the plaintiff refused to follow and that safe and appropriate safety devices were available.

(2) THE BREAK WITH PRECEDENT

Cahill v. Triborough Bridge and Tunnel Authority, 4 N.Y3d 35, 790 N.Y.S.2d 74 (2004).

The Court of Appeals in Cahill completely ignored long established precedent in holding that, in order to prevail upon the recalcitrant worker defense, it need not be shown that the plaintiff refused to comply with an immediate safety instruction but that one given weeks before was sufficient.

The plaintiff in Cahill was working on the repair and reconstruction of the Triborough Bridge. In order to perform his work plaintiff had to climb up and down forms. The plaintiff wore a safety harness and was supposed to attach a safety line to lanyards affixed to the safety harness. Several weeks before the accident the plaintiff was climbing a form without using a safety line and his supervisor told him he needed to use the safety line when climbing.

At the time of the accident, weeks later, the plaintiff was climbing a form without using a safety line when he fell.
In reversing the grant of plaintiff’s Motion for Summary Judgment, the Court of Appeals held that the plaintiff, in fact, could be found to be a recalcitrant worker despite the fact that instructions to use the safety line had been given weeks before and such was a question of fact for a jury.
The holding completely ignores not only the Court’s prior decisions but numerous Appellate Division decisions which mandated that to prevail upon the recalcitrant worker defense it must be shown that a worker refused an immediate instruction.
In point of fact, the Court ignored its holding in Jastrzebski, supra, in which it held that the recalcitrant worker defense applied because the plaintiff’s supervisor “…just prior to the accident, gave him very specific orders not to use the ladder…This immediate and active direction by the supervisor is significantly different from the distant and passive instruction in Gordon”.
It is submitted that there is no way one can reconcile this holding with the Court’s prior holdings in Gordon and Jastrzebski, as well as those of the Appellate Divisions.

(3) THE RECALCITRANT WORKER POST-CAHILL

The Appellate Court decisions, as might be expected, issued conflicting opinions regarding the recalcitrant worker defense post Cahill. Following are some of the cases following Cahill and prior to Gallagher v. The New York Post, et. al., 14 N.Y.3d 83, 896 N.Y.S.2d 739 (Ct Apps 2010) discussed infra, in which the Court moved back to the law pre-Cahill.

1. Miro v. Plaza Construction Corp., 38 A.D.3d 454, 834 N.Y.S.2d 36 (1st Dept. 2007)

Facts: The plaintiff was installing fire alarms at a building when he slipped and fell as he climbed down a six foot ladder that was partially covered with sprayed-on fireproofing material which he claimed caused him to fall. He conceded that he could have requested a different ladder but did not. In holding that the defendants should have been granted Summary Judgment dismissing plaintiff’s complaint the Court, citing Cahill and Blake v. Neighborhood Hous. Servs. Of N.Y.C., Inc., 1 N.Y.3d 280, 771 N.Y.S.2d 484 (discussed infra) stated:
“A plaintiff who knowingly chooses to use defective or inadequate equipment notwithstanding being aware that he or she could request or obtain proper equipment has no claim under Labor Law §240(1). In this case, the uncontroverted evidence establishes that plaintiff recognized the undesirability of the fireproofing material on his ladder, knew full well that he could have requested that his employer provide him with a new, clean ladder, and yet – for no apparent good reason – chose not to make such a request. Thus, plaintiff’s decision not to request a new ladder, not any violation of Labor Law §240(1), was the sole proximate cause of his accident.”

Miro, was modified by the Court of Appeals, 9 N.Y.2d 948, 846 N.Y.S.2d 76 (2007) on the following certified question: “was the order of this Court, which reversed the order of the Supreme Court, properly made?” The Court of Appeals answered in the negative holding that “assuming that the ladder was unsafe, it is not clear from the record how easily a replacement ladder could have been procured”.

This decision at the time was of little comfort to plaintiffs since the inference is that had another ladder been available somewhere on the job site and the plaintiff was aware of this it would then be the plaintiff’s obligation to obtain the ladder rather than the obligation of the general contractor, owner or other statutorily liable defendant to provide it to him. In such a case the plaintiff could be held to be a recalcitrant worker and his conduct the sole proximate cause of the accident. This Appellate Division decision although modified as set forth above, highlighted the attempt, led by the Court of Appeals, to eviscerate the protection afforded to injured workers under the Labor Law. Here the plaintiff received no instructions to use another ladder, and did not disobey an instruction to use another one, but merely didn’t request another one. This turned the long established purpose of the Labor Law on its head and injected, though some may argue otherwise, the plaintiff’s own culpable conduct as a defense to §240. This is so despite the fact that the Court’s have couched it in terms of sole proximate cause or recalcitrant worker.

The long established precedent ignored by the Court of Appeals in Cahill was reiterated in The Court of Appeals holding in Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 577 N.Y.S.2d 219 (1991) which summarized the long established purpose of the Labor Law:

“Section 240(1) of the Labor Law, entitled ‘Scaffolding and other devices for use of employees’ requires that all contractors and owners ‘in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated, as to give proper protection to a person so employed (emphasis added). The legislative purpose behind this enactment is to protect ‘workers by placing “ultimate responsibility for safety practices as building construction jobs where such responsibility actually belongs, on the owner and general contractor” (1969 NY Legis Ann, at 407), instead of on workers, who “are scarcely in a position to protect themselves from accident” (Koenig v. Patrick Const. Co., 298 NY 313, 318 [83 N.E.2d 133]) (Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513, 520, 493 N.Y.S.2d 102, 482 N.E.2d 898).”

What the Court of Appeals did in Cahill was to reverse precedent and place ultimate responsibility on the injured worker, without directly stating that their prior decisions are no longer the law.

2. Fitzsimmons v. City of New York, 37 A.D.3d. 655, (2d Dept. 2007), the Court held:
“Contrary to the appellants’ argument, a ‘recalcitrant worker defense’ is unavailable in this case. To raise a triable issue of fact as to a possible recalcitrant worker defense, the appellants must establish that the injured worker deliberately refused to use available and adequate safety devices in place at the work station (see Harris v. Rodriguez, 281 A.D.2d 158, 721 N.Y.S.2d 344…”

Note, that in this post Cahill decision the Court did not even cite Cahill but reiterated the prior law that a worker must have deliberately refused to use available and adequate safety devices in place at the work station.
Interestingly, the Court referred to a 2001 case Harris v. Rodriguez, 281 A.D.2d 158, 721 N.Y.S.2d 344 (1st Dept. 2001) decided long before Cahill which held:
“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).

3. In Pearl v. Sam Greco Construction Inc., 31 A.D. 3d 996, 819 N.Y.S.2d 193 (3rd Dept. 2006) the plaintiff was installing a sheet metal roof. Following the end of the work day safety equipment was stored in a gang box on the roof about ten feet above the eaves. The plaintiff fell while he was attempting to get to the gang box. The Court rejected the recalcitrant worker defense since “the safety equipment was neither available nor visibly in place”.

4. In Palacios v. Lake Carmel Fire Dept., Inc., 15 A.D.3d 461, 790 N.Y.S.2d 185 (2nd Dept. 2005) the plaintiff fell from a ladder. He testified that he was using a ladder, not a scaffold, because the owner of his company had told him not to disassemble and move a scaffold. The owner, a job supervisor, testified that the plaintiff was instructed to use a scaffold. In denying plaintiff’s Motion for Summary Judgment, the Court held that there were triable issues of fact since the plaintiff was instructed to use an allegedly available scaffold. Compare this decision with Gordon, supra, and they are difficult to reconcile.

5. In Andrews v. Ryan Homes, Inc., 27 A.D.3d 1197, 812 N.Y.S.2d 729 (4th Dept. 2006) the plaintiff was injured when she fell from a ladder while cleaning a house. The Court found that plaintiff met her initial burden on her Motion for Summary Judgment by establishing that her employer placed a ladder near a window that was to be cleaned and that the plaintiff was injured when she climbed the ladder which slid out from under her. However, the Court held the recalcitrant worker defense was a question of fact for a jury:

“In opposition to the motion, however, defendant presented evidence establishing that, approximately 30 minutes before the accident, Bobbitt told plaintiff not to climb the ladder as it was positioned and, indeed, that Bobbitt had repeatedly told plaintiff not to use the ladder without someone to steady it. Defendant further presented evidence establishing that Bobbitt and another member of the work crew were present and able to steady the ladder and that the ladder was not defective. Furthermore, plaintiff admits that, seconds before the accident, Bobbitt told her not to climb the ladder but she ‘didn’t take [Bobbitt] seriously’. We thus conclude that there is an issue of fact whether plaintiff was a recalcitrant worker and, if so, whether her actions were the sole proximate cause of her injuries (see Montgomery v. Federal Express Corp., 4 N.Y.3d 805, 806, 828 N.E.2d 592, 795 N.Y.S.2d 490; Cahill v. Triborough Bridge & Tunnel Auth.,4 N.Y.3d 35, 39-40, 823 N.E.2d 439, 790 N.Y.S.2d 74), precluding partial summary judgment on the issue of liability under Labor Law §240(1).”

Compare this with the Court of Appeals’ decision in Stolt in which the plaintiff had been instructed not to use a ladder unless a co-worker was present to secure it. In both cases, no proper safety devices were provided and both plaintiffs did not heed instructions not to use the ladder unless a co-worker was present to secure it. The only distinction is the timing of the instructions which were not of importance to the Court in Cahill.

6. Landgraff v. 1579 Bronx River Avenue, LLC, 18 A.D.3d 385, 796 N.Y.S.2d 58 (1st Dept. 2005)

The plaintiff’s accident took place while he was on a scaffold in order to cut and remove a length of elevated metal pipe with an electric saw when the pipe fell, swinging against the scaffold and tipping it over, causing the plaintiff to fall to the floor. In reversing the denial of plaintiff’s Motion for Summary Judgment, the Court held that “the recalcitrant worker defense is not applicable as it is limited to circumstances where a worker is injured as a result of his/her refusal to use available safety devices”. Interestingly, the Court did not cite Cahill, but instead relied upon Hagins, supra, a pre-Cahill case.

7. Szuba v. Marc Equity Properties, Inc., 19 A.D.3d 1176, 798 N.Y.S.2d 813 (4th Dept. 2005)
The plaintiff was injured when he fell from the roof of a house on which he was cutting vent holes. It was undisputed that the only safety devices used on the site were two by fours which were not in place at the time of the accident. The Court reversed the denial of plaintiff’s Summary Judgment Motion stating that “The presence of safety devices somewhere on the work site does not discharge the owner’s duty to provide proper protection to workers…”. The Court went on to hold:

“An instruction by an employer or owner to avoid ‘unsafe practices is not a safety device’ in the sense that plaintiff’s failure to comply with the instruction is equivalent to refusing to use available, safe and appropriate equipment” (Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 563, 626 N.E.2d 912, 606 N.Y.S.2d 127; see Stolt v. General Foods Corp., 81 N.Y.2d 918, 920, 613 N.E.2d 556, 597 N.Y.S.2d 650.

8. In Guaman v. New Sprout Presbyterian Church of N.Y., 33 A.D..3d 758, 822 N.Y.S.2d 635 (2ND Dept. 2006) the plaintiff was on a ladder which had been erected on top of a scaffold. There were no safety devices present. The scaffold tipped causing the plaintiff to fall. In rejecting the recalcitrant worker defense and granting plaintiff’s Motion for Summary Judgment the Court held:

“The allegation that the plaintiff was instructed prior to the accident to stop work in an unsafe and unstable manner was based on inadmissible hearsay. While hearsay statements have been held to be sufficient to oppose a summary judgment motion under certain circumstances, no such circumstances were present in this case (see Joseph v. Hemlok Realty Corp., 6 A.D.3d 393, 393, 775 N.Y.S.2d 61; Allstate Ins. Co. V. Keil, 268 A.D.2d 545, 546, 702 N.Y.S.2d 619). Even if we consider the hearsay statement, it was insufficient to raise a triable issue of fact because the church failed to demonstrate that the plaintiff refused to use an available safety device (see Stolt v. General Foods Corp., 81 N.Y.2d 918, 920, 613 N.E.2d 556, 597 N.Y.S.2d 650; Szuba . Marc Equity Prop., 19 A.D.3d 1176, 1177, 798 N.Y.S.2d 813; Andino v. BFC Partners, 303 A.D.2d 338, 340, 756 N.Y.S.2d 267).” (emphasis supplied).

9. Santo v. Sero, et. al., 43 A.D.3d, 897, 841 N.Y.S.2d 627 (2nd Dept. 2007).
The plaintiff fell from a scaffold he was using to install lighting fixtures in the ceiling of a house under construction. He testified that he did not use an available extension ladder as it was too flimsy when fully extended and could not be safely used unless someone was available to secure the bottom of the ladder.
The Court reversed the granting of summary judgment dismissing plaintiff’s 240(1) claim and citing Jastrzebski, supra, among other cases stated as follows regarding defendant’s recalcitrant worker defense:

“Further, contrary to the contention of MDS, the evidence does not establish a recalcitrant worker defense, which requires proof that a plaintiff disobeyed an ‘immediate specific instructions to use an actually available safety device [provided by the employer] or to avoid using a particular unsafe device”.

How this can be explained in view of the decision in Cahill, is anyone’s guess and further serves to demonstrate the ad hoc approach taken by the Appellate Courts to 240(1) cases.

10. McCarthy v. Turner Construction, Inc., 52 A.D.3d 333, 859 N.Y.S.2d 648 (1st Dept., 2008).

The plaintiff was injured when an unsecured ladder upon which he was standing in order to drill holes in a ceiling tipped over causing him to fall to the floor. In affirming summary judgment the Court rejected both the recalcitrant worker and sole proximate cause defenses since the failure to provide a proper safety device was a proximate cause of the accident. Relying on Stolt, supra, the Court held with regard to the recalcitrant worker defense:
“The apprentice electrician working with plaintiff is not a safety device contemplated by the statute. Nor even if plaintiff had disobeyed an instruction to have the apprentice hold the ladder steady for him, would the owners’ and general contractor’s liability for failure to provide adequate safety devices be reduced…”

11. Massullo v. 1199 Holding Corp., et. al., 63 A.D.3d 430; 881 N.Y.S.2d 47 (1st Dept. 2009).
Plaintiff, in order to run electrical cable, which had to be elevated off the ground, constructed a makeshift scaffold with a platform 3 to 3 ½ feet high. While standing on the scaffold he attempted to toss the cable over a tree branch two to three feet higher than his outstretched arm. While doing so he fell off the scaffold.
In reversing the grant of summary judgment to the defendant, the Court stated that, although plaintiff acknowledged that if he needed any type of equipment he could call his employer and it would be delivered later in the day or the next morning, the record was unclear as to exactly where the equipment was stored, the time frame for delivery and whether any delay in obtaining a ladder would impact the project. The Court held the case to be controlled by the Court of Appeals decision in Miro, supra decided in 2007. (“assuming the ladder was unsafe, it is not clear from the record how easily a replacement ladder could have been procured”).

It is submitted that Massullo is an example of the Courts moving away from decisions discussed herein which shifted the burden to provide a safe place to work to the injured plaintiff.

Recent decisions regarding the sole proximate cause and recalcitrant worker defense which are, in reality intertwined, indicate a clear shift by the Courts to the pre-Cahill body of law. In any event, the recalcitrant worker defense has, as a practical matter, been subsumed by the sole proximate cause defense. The more recent cases cited under the sole proximate cause defense indicate that the Appellate Courts are, in fact, narrowing the applicability of the recalcitrant worker defense, although discussing it in terms of sole proximate cause. Then, on February 11, 2010 the Court of Appeals decision in Gallagher v. N.Y. Post, et. al., 14 N.Y. 83, 896 N.Y.S.2d 732, set forth explicitly what must be proven for a defendant to prevail on a “sole proximate cause” defense where the defense alleges the plaintiff failed to use an available safety device.

(B) THE FAILURE TO USE AVAILABLE SAFETY DEVICES AND THE RETREAT FROM CAHILL

Gallagher v. The New York Post, et. al., 14 N.Y.3d 83, 896 N.Y.S.2d 732 (CT. Apps. 2010).

Gallagher is the latest word from the Court of Appeals regarding the plaintiff’s failure to use an available safety device. It demonstrates the Court’s movement back to the law prior to Cahill and Montgomery.
The facts as stated by the Court, in an opinion by Judge Pigott, were as follows:

“On June 28, 2004, plaintiff Hugh Gallagher, an ironworker, was assigned to remove a section of metal decking from the second floor of a building in the Bronx owned by defendant NYP Holdings, Inc. (“NYP”), in preparation for the installation of new flooring. He was partnered with another ironworker, Jim Gaffney; the two men worked under the direction of foreman Joe Nover. Gallagher was cutting the metal with a two-handled, powered saw, enlarging an opening created by other workers. According to Gallagher, he was holding both handles of the saw when its blade jammed, propelling him forward so that he fell through the uncovered opening. Gallagher landed on a temporary floor situated between the first and second levels, sustaining injuries.”

The defendants asserted that safety harnesses with lanyards were available at the work site and that there was a standing order issued by the project manager that ironworkers should have a harness and be tied off.
In granting plaintiffs Summary Judgment the Court stated in pertinent part:

“NYP relies on our decision in Montgomery v. Federal Express Corp. (4 NY3d 805 [2005]). In Montgomery, we held that a worker who injured himself when he jumped from an elevator motor room to a roof, rather than use a “readily available” ladder, was not entitled to recover under Labor Law §240 (1). Similarly, in Robinson v. East Med. Ctr., LP (6 NY3d 550, 553 [2006]), we held that a plumber who lost his balance and injured himself, when he used a six-foot ladder to install pipes at a height of 12 to 13 feet from the floor, could not recover under §240 (1), because he knew that there were eight-foot ladders on the job site and exactly where they could be found. Both cases stand for the same proposition. Liability under §240 (1) does not attach when the safety devices that plaintiff alleges were absent were readily available at the work site, albeit not in the immediate vicinity of the accident, and plaintiff knew he was expected to use them but for no good reason chose not to do so, causing an accident. In such cases, plaintiff’s own negligence is the sole proximate cause of his injury (see Cahill v. Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39-40 [2004]).

This is not such a case. There is no evidence in the record that Gallagher knew where to find the safety devices that NYP argues were readily available or that he was expected to use them. Although Schreck testified that appropriate safety devices were available at the project site on the date of the accident, nowhere in his testimony did Schreck state that Gallagher had been told to use such safety devices. Schreck referred to a “standing order” issued to the project foremen, directing workers to “have a harness on and be tied off,” but could not say whether the order had been conveyed to the workers. Moreover, the affidavit of Gallagher’s foreman, Nover, who was not deposed, does not support NYP’s claim that Gallagher was told about safety devices. Nover stated that Gallagher had not been provided with the requisite safety devices, a proposition that is consistent either with Gallagher’s ignorance of the availability of safety devices or with his knowledge thereof. Even viewed in the light most favorable to NYP (as it must be when we consider plaintiffs’ motion for summary judgment), the evidence does not raise a question of fact that Gallagher knew of the availability of the safety devices and unreasonably chose not to use them.”

Thus in order to prevail on the “sole proximate cause” defense it must be shown that:
(1)Safety devices were readily available at the work site.
(2)The plaintiff knew he was expected to use them and (3)For no good reason chose not to do so.

Illustrative Cases Post Gallagher

1. Murray v. Arts Center and Theater of Schenectady, Inc., et. al.. 77 A.D.3d 1155; 910 N.Y.S.2d 187 (4th Dept. Oct. 2010).
The plaintiff, an ironworker, fell from a beam to the floor 15 feet below. At the time he was wearing a harness and lanyard but was not tied off to anything. In reversing the Supreme Court’s denial of plaintiffs’ motion for summary judgment, the court held as follows:
“The failure to use the available harness cannot be considered the sole proximate cause of the accident where there is evidence that plaintiff had been instructed that he did not need to use it and no opposing evidence that, based on his training, prior practice and common sense, he knew or should have known to use it (see Pieri v. B & B Welch Assoc., 74 AD3d 1727, 1729, 904 N.Y.S.2d 595 [2010]; Lantry v. Parkway Plaza, 284 AD2d 697, 698, 726 N.Y.S.2d 755 [2001]). While “[l]liaibility under [Labor Law §] 240 (1) does not attach when [] safety devices . . . were readily available at the work site, . . . and plaintiff knew he was expected to use them but for no good reason chose not to do so, causing an accident” (Gallagher v. New York Post, 14 NY3d 83, 88, 923 N.E.2d 1120, 896 N.Y.S.2d 732 [2010]; see Cahill v. Triborough Bridge & Tunnel Auth., 4 NY3d 35, 40, 823 N.E.2d 439, 790 N.Y.S.2d 74 [2004]), here, plaintiff had a number of good reasons not to tie off his harness.

Plaintiff testified at his examination before trial that, according to his training as an ironworker, he was not expected to tie off when working at the height from which he fell, and that he had been told by his supervisor on the job that he was not required to be tied off at that height. Plaintiff’s supervisor confirmed that plaintiff was not in violation of any job safety rules at the time of the accident despite the fact that he was not tied off. Notably, the contractors had agreed by contract to provide services to the owner that would not include safety practices more stringent that those provided in the applicable Occupational Safety and Health Administration (hereinafter OSHA) regulations, and there is no dispute that the applicable OSHA regulations did not require plaintiff to be tied off at the height from which he fell (see 29 CFR 1926.760 [2001]). As we have noted, however, mere compliance with OSHA regulations does not defeat a prima facie showing of Labor Law §240 (1) liability (see Dalaba v. City of Schenectady, 61 AD3d 1151, 1153, 876 N.Y.S.2d 744 [2009]). Defendants’ bold assertions that common sense would have dictated use of the harness and that nothing precluded its use are unavailing as defendants failed to submit any evidence that plaintiff knew or should have know that he was expected to anchor his safety harness and chose for no good reason not to do so (see Gallagher v. New York Post, 14 NY3d at 88-89;Cahill v. Triborough Bridge & Tunnel Auth., 4 NY3d at 40; Smith v. Picone Constr. Corp., 63 AD3d 1716, 1717, 881 N.Y.S.2d 579 [2009]; Balzer v. City of New York, 61 AD3d 796, 797-798, 877 N.Y.S.2d 435 [2009]; Ewing v. Brunner Intl., Inc., 60 AD3d 1323, 1324, 875 N.Y.S.2d 388 [2009]; Ganger v. Cimato, 53 AD3d 1051, 1053, 862 N.Y.S.2d 678 [2008]; Desrosiers v. Barry, Bette & Led Duke, Inc., 189 AD2d 947, 948, 592 N.Y.S.2d 826 [1993]).

2. Silvia v. Bow Tie Partners, LLC, et. al., 77 A.D.3d 1143; 909 N.Y.S.2d 202 (3rd Dept. 2010).
The plaintiff was injured when a plank on which he was standing as part of a makeshift scaffold broke causing him to fall. The Court, based upon the following facts, reversed the granting of summary judgment to the plaintiffs holding there were questions of fact as to whether there was a statutory violation and whether plaintiff’s conduct was the sole proximate cause of the accident.

“Here, in support of their motion, plaintiffs submitted, among other things, the deposition testimony of plaintiff and the affidavit of a professional engineer. Plaintiff testified that, in connection with his work as a taper for D & B at the construction site in question, his supervisor provided him with two ladders and a wooden plank and instructed him on how to build a scaffold, to be used in the stairwell area in which he had been assigned to work. The area of the wall upon which he was working was 10 feet above the floor and the plank was four to six feet above the floor. D & B’s safety plan called for either a harness or other tie-offs to be used when work was to be done at a height of more than four feet. On the day of the accident, plaintiff had assembled the ladders and plank and had worked on this makeshift scaffold until taking a break. Before taking his break, plaintiff deconstructed the scaffold and, when the break was over, he reconstructed it, using the two ladders and wooden plank that were in the location where he had left the materials. No other safety devices, such as a harness or tie-downs were used. When he walked out on the plank, he heard a pop and the plank broke beneath him, causing him to fall to the stairs over which he was working. Plaintiff testified that, after his fall, he learned that a coworker had removed the plank that he had used in the morning and placed a broken plank near plaintiff’s work area, which plaintiff had used unknowingly when he reconstructed the scaffold after his break. Plaintiffs’ expert opined that D & B failed to provide “any safety devices” to plaintiff and that what was provided was not a proper safety device. Specifically, plaintiffs argue that the makeshift scaffolding did not constitute a safety device enumerated in Labor Law §240 (1), that the materials provided to construct the makeshift scaffolding were inadequate and that no other safety devices – – such as harnesses and tie-offs – -were provided.”
***********************************

“In opposition, defendants and D & B supplied the deposition testimony of Randy Cosselman, a carpenter employed by D & B, that he had observed plaintiff with the plank that ultimately broke and told plaintiff not to use it because it was cracked. He further testified that plaintiff replied that he did not care. There was also deposition testimony that there were Occupational Safety and Health Act compliant planks next to a dumpster just outside a doorway adjacent to the area where plaintiff was working. In addition, the affidavit of a professional engineer was submitted. The engineer noted that scaffolds are safety devices for the purposes of Labor Law §240 (1). He further opined that the scaffold planking used here was compliant with applicable regulations and that plaintiff’s injuries were caused by his failure to use a sound plank that was available. Thus, contrary to plaintiffs’ contention, we find that defendants’ and D & B’s argument that the makeshift scaffolding was an appropriate safety device was preserved for our review. In addition, testimony was provided that workers were advised in daily briefings of the availability of harnesses and other safety equipment in the gang boxes on site. On this record, and viewing this evidence in the light most favorable to defendants and D & B as the nonmoving parties (see Rought v. Price Chopper Operating Co., Inc., 73 AD3d 1414, 901 N.Y.S.2d 418 [2010], we conclude that they have raised questions of fact with regard to whether there was a statutory violation and whether plaintiff’s conduct was the sole proximate cause of his injuries (see Cantineri v. Carrere, 60 AD3d 1331, 1333, 875 N.Y.S.2d 417 [2009]; see generally Morin v. Machnick Bldrs., 4 AD3d at 671; compare Gallagher v. New York Post, 14 NY3d at 89; Robinson v. East Med. Ctr., LP, 6 NY3d 550, 554-555, 847 N.E.2d 1162, 814 N.Y.S.2d 589 [2006]). Accordingly, partial summary judgment should not have been granted to plaintiffs as to liability.”

3. Handville v. MJP Contractors, Inc., et. al., 77 A.D.3d 1471; 908 N.Y.S.2d 799 (4th Dept. Oct. 2010).
The Court granted plaintiffs’ motion for summary judgment pursuant to §240 (1) where plaintiff fell from a ladder scaffold at a construction site holding as follows:
“We agree with plaintiffs on their appeal that they met their initial burden on that part of their motion with respect to Labor Law §240 (1) (see Cherry v. Time Warner, Inc., 66 AD3d 233, 236, 885 N.Y.S.2d 28), and we reject the contention of MJP that it raised a triable issue of fact whether the actions plaintiff were the sole proximate cause of his injuries under section 240 (1) (see Ewing v. Brunner Intl., Inc., 60 AD3d 1323, 875 N.Y.S.2d 388; see generally Gallagher v. New York Post, 14 NY3d at 83, 88, 923 N.E.2d 1120, 896 N.Y.S.2d 732) Although MJP submitted evidence establishing that proper safety equipment, i.e., scaffolding approved by the Occupational Safety and Health Administration and related safety lines, was present at the work site, MJP did not present any evidence establishing that plaintiff had been instructed to use that equipment (see Ganger v. Anthony Climato/ACP Partnership, 53 AD3d 1051, 1052-1053, 862 N.Y.S.2d 678; cf. Lovall v. Graves Bros., Inc., 63 AD3d 1528, 1529, 879 N.Y.S.2d 862).”

4. Auriemma v. Biltmore Theatre, LLC, et. al., 82 A.D.3d 1, 917 NYS2d 130
1st Dept. 2011).
The plaintiff suffered injuries when he fell into a four-foot deep open pit at a construction worksite. The facts regarding the happening of the accident were set forth as follows:

“The plaintiff was on the site for about a month before he was injured in the accident at issue. On the morning of October 1, 2002, the plaintiff’s foreman directed him to go downstairs to the mechanical room to unlock tools and set up equipment for the day. The plaintiff testified that the staircase he would normally have used was blocked with debris and/or materials and the only route to the mechanical room was to go down into an excavated pit about four to six feet deep and climb out the other side. There was no way around the pit, and the only ladder he saw was at the bottom resting against the opposite wall.

In order to get into the pit, the plaintiff used a 10-foot-long wooden plank that had been placed with one edge at the top and the other at the bottom of the pit. He tested the plank by pushing down with one foot, and then, since it appeared stable, he started down. The plank, which was resting on dirt, shifted and he fell to the bottom of the pit, suffering injuries to his neck, back, and right shoulder.”

In rejecting the sole proximate cause defense and granting plaintiff’s motion for summary judgment, the Court held:
“The plaintiff testified that the only access to his equipment was through the pit because the stairs he normally used were blocked. His foreman testified that blocked stairways were a constant, “hourly” problem, and could not confirm whether any staircase was unblocked at the time of the accident. The plaintiff further testified, and defendants do not dispute, that there was no ladder available in the immediate vicinity of the pit. Since it is uncontroverted that the plaintiff’s injuries were sustained in his fall from an unstable wooden plank while attempting to get to the bottom of the pit, he was satisfied the burden of showing that the defendant’s failure to provide him with an adequate safety device was the proximate cause of his injuries.

In opposition, the defendants assert that the plaintiff’s own negligence was the sole proximate cause of his injury. However, to defeat the plaintiff’s motion for partial summary judgment, the defendants must raise an issue of fact as to whether the plaintiff ‘had adequate safety devices available; that he knew both that they were available and the he was expected to use them; that he chose for no good reason not to do so; and that had he not made that choice he would not have been injured.’ (Cahill, 4, NY3d at 40; see Gallagher v. New York Post, 14 NY3d 83, 88 [2010].) Even viewed in the light most favorable to the defendants, there is no evidence in the record that the plaintiff had a safety device available, knew that he was expected to use it, and unreasonably chose not to do so.

The burden of providing a safety device is squarely on contractors and owners and their agents. (Cherry, 66 AD3d at 235, citing Zimmer, 65 NY2d at 520). Section 240(1) of the Labor Law has unequivocally placed the duty on ‘[a]ll contractors and owners’ ‘to’ ‘furnish or erect or cause to be furnished or erected,’ safety devices which ‘shall be so constructed, placed and operated as to give proper protection.’ (See Cherry, 66 AD3d at 235-236.)

Thus, a worker is expected, as a ‘normal and logical response,’ to obtain a safety device himself (rather than having one provided to him) only when he knows exactly where a safety device is located, and there is a practice of obtaining a the safety {**82 AD3d at 11} device himself because it is easily done. (Cherry, 66 AD3d at 238, quoting Robinson v. East Med. Ctr., LP, 6 NY3d 550, 554 [2006].) The general availability of safety equipment at a work site does not relieve the defendants of liability. (Cherry, 66 AD3d at 236 [(t)he mere presence of ladders or safety belts somewhere at the worksite does not establish ‘proper protection’], quoting Zimmer, 65 NY2d at 524; see also Garcia v. 1122 E. 180th St. Corp., 250 AD2d 550, 551-552 [1st Dept 1998]; McLean v. Vahue & Son Bldrs., 210 AD2d 999 [4th Dept 1994].)

The plaintiff testified that the only ladder in the area was inaccessible because it was located at the bottom of the pit propped against the opposite wall to facilitate exit from the pit on that side. Although the foreman testified that ladders were generally available at the construction site, he observed that no ladder was available in the vicinity of the pit when he arrived at the scene shortly after the accident. The defendants have not asserted, nor is there any evidence in the record, that the plaintiff either knew where a ladder was located or that it was his habit to get one for himself.

Moreover, a standing order to use safety devices does not raise a question of fact that the plaintiff knew that safety devices were available and unreasonably chose not to use them. (Gallagher, 14 NY3d at 88-89.) Similarly, the announcement made to Mass workers at the weekly safety meeting directing them to use ladders or stairs does not raise a question of fact as to whether the plaintiff knew that a safety device was available, that he was expected to use it, and unreasonably chose not to do so.

Even if we accept the defendants’ assertion that the plaintiff was told to use only ladders or stairs and not planks, his decision to use a plank can only be considered unreasonable if ladders or stairs were in fact readily available. (See e.g. Rivera v. Ambassador Fuel & Oil Burner Corp., 45 AD3d 275, 276 [1st Dept 2007] [‘(a) worker does not become recalcitrant merely by disobeying a general instruction not to use certain equipment, if safer alternatives are not supplied’], citing Stolt v. General Foods Corp., 81 NY2d 918, 920 [1993] and Balthazar v. Full Circle Constr. Corp., 268 AD2d 96, 99 [1st Dept 2000].) Here, the defendants have not established that the plaintiff had a choice much less that he explicitly refused to use an available safety device and unreasonably opted to use the wooden plank.”

5. Pietrowski v. Are-East River Science Park, LLC, et. al., 86 A.D.3d 467, 928 NYS2d. 266 (1st Dept. 2011).
The plaintiff claimed he was injured while descending from the fifth floor of a building under construction to a scaffold located approximately seventy inches below.
In reversing the lower Court’s granting of summary judgment for plaintiff on his §240(1) claim and holding there were questions of fact regarding the proximate cause of the accident, the Court held:
“The motion court erred in granting summary judgment to plaintiffs on their Labor Law §240(1) claim since there are triable issues of fact with respect to what proximately caused plaintiff Richard Pietrowski’s accident. It is well settled that ‘liability under section 240(1) does not attach when the safety devices that plaintiff alleges were absent were readily available at the work site . . . and plaintiff knew he was expected to use them but for no good reason chose not to do so, causing an accident’ (Gallagher v. New York Post, 14 NY3d 83, 88 [2010]; Robinson v. East Med. Ctr., LP, 6 NY3d 550, 554 [2006]; Cahill v. Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39-40 [2004]).

Here, while plaintiff’s foreman, Jack Sanders, averred that ‘there were no independent safety cable systems erected’ at the location of Pietrowski’s fall, the record evidence proffered by defendants suggests the opposite. Specifically, Keith Balvin, a structural superintendent employed by defendant Turner Construction Company averred that upon his post-accident inspection of the situs of the accident, which reflected pre-accident conditions, he noted the existence of independent safety cable systems, namely two choker cable slings on a vertical beam. In addition, Ed Hendrickson, a general foreman employed by Pietrowski’s employer, averred that on the date of Pietrowski’s accident he observed ‘several choker cables (or ‘slings’) . . . with retractable lanyards attached to the chokers,’ in the area from which Pietrowski alleges to [*2] have fallen. Hendrickson further stated that Pietrowski was provided with a safety booklet outlining the elevation related safety rules including tie-off requirements for iron workers, that employees were told that they were required to tie off, that iron workers were provided with choker cables to attach to vertical/horizontal beams so that they could tie off safely, and that all employees were aware that choker cables were readily available in gang boxes on each floor. Thus, whether defendants failed to provide Pietrowski with choker cables, or whether they were made available and Pietrowski was recalcitrant in failing to use them is a question of fact precluding summary judgment in favor of any of the parties (Garlow v. Chappaqua Cent. School Dist., 38 AD3d 712, 714 [2007]).”

6. Corderio v. TS Midtown Holdings, LLC, et. al., 87 A.D.3d 904; 931 N.Y.S.2d 41 (1st Dept. 2011).
The plaintiff sustained injuries while preparing to remove elevator equipment from a building owned and managed by defendants by hoisting it through hatchway doors connecting a motor room with the floor below it. As plaintiff was sliding open the latch to the door, they unexpectedly opened, causing him to fall to the floor below. Despite the fact that the doors were a permanent fixture of the building, the Court in granting the motion and reversing the lower Court held:
“Plaintiffs met their prima facie burden of establishing entitlement to partial summary judgment on their Labor Law §240(1) claim. Although the doors through which plaintiff fell were a permanent fixture of the building, they were not a ‘normal appurtenance,’ but rather, an access opening specifically built for the purpose of allowing workers to perform their work on the building elevators by hoisting materials to the building’s motor rooms (Brennan v. RCP Assoc., 257 AD2d 389, 391 [1999], lv dismissed 93 NY2d 889 [1999]). Accordingly, we find that the hatch in this case was a ‘device’ within the meaning of §240(1) (see id.; Crimi v. Neves Assoc., 306 AD2d 152, 153 [2003]). Further, plaintiff did not step onto hatchway doors that opened accidentally (compare Bonura v. KWK Assoc., 2 AD3d 207 [2003], and Rodgers v. 72nd St. Assoc., 269 AD2d 258 [2000]). Rather, plaintiff was required to open the doors in order to hoist up the governor from the 19th floor hallway below. This exposed plaintiff to a gravity-related risk of falling into the hallway from the motor room (see Godoy v. Baisley Lbr. Corp., 40 AD3d 920 [2007]).

The Court also rejected the sole proximate cause defense:

“In opposition, defendants failed to raise a triable issue of fact as to whether plaintiff was the sole proximate cause of the accident (see Gallagher v. New York Post, 14 NY3d 83, 88 [2010]; Blake v. Neighborhood Hous. Servs. Of N.Y. City, 1 NY3d 280, 289 n 8 [2003]; see also Miglionico v. Bovis Lend Lease, Inc., 47 AD3d 561, 565 [2008]). Defendants did not submit any admissible evidence that plaintiff knew he should have used his safety harness under these circumstances, or that he knew his partner had a suitable 50-foot lifeline to which the harness could have been attached. While defendants argue that plaintiff could have tied his six-foot lanyard to a nearby beam or staircase, no evidence, expert or lay, was submitted that either of these options were appropriate anchorage sites (see Miglionico, 47 AD3d at 564-565). Accordingly, plaintiffs were entitled to partial summary judgment as to liability on their Labor Law §240(1) claim.”

Further the Court refused to dismiss plaintiffs 241(6) claim predicated on and alleged violation of Industrial Code (12 NYCRR) §23-1.7(b)(1) regarding hazardous opening despite the fact that it was not specifically claimed until a third supplemental bill of particulars was served, without leave of court, after plaintiffs moved for summary judgment. The Court reasoned that:
“Supreme Court improperly dismissed plaintiff’s Labor Law §241(6) claim to the extent it is based on an alleged violation of Industrial Code (12 NYCRR) §23-1.7(b)(1). Plaintiffs first alleged this particular Code provision concerning hazardous openings in a third supplemental bill of particulars served, without leave of court, after plaintiffs moved for summary judgment. However, plaintiffs’ original bill of particulars claimed that defendants failed to adequately maintain the hatchway, causing plaintiff to fall when it suddenly opened. Accordingly, plaintiffs’ belated identification of 12 NYCRR 23-1.7(b)(1) ‘entails no new factual allegations, raises no new theories of liability, and has caused no prejudice to defendant[s]’ (Noetzell v. Park Ave. Hall Hous. Dev. Fund Corp., 271 AD2d 231, 233 [2000]; see Cevallos v. Morning Dun Realty, Corp., 78 AD3d 547, 549 [2010]). Further, the provision is sufficiently specific to support a Labor Law §241(6) claim (see Luckern v. Lyonsdale Energy Ltd. Partnership, 281 AD2d 884, 886 [2001]), and issues of fact exist as to whether it was violated.”

7. Georgia v. Urbanski, et. al., 84 A.D.3d 1569, 923 NYS2d 274 (3rd Dept. 2011).

The plaintiff was doing framing work on a home under construction. He placed a ladder on ice outside the foundation and was injured when the ladder kicked out from under him. The Court affirmed the lower Court’s denial of plaintiffs’ 240(1) motion for summary judgment on the grounds that there were questions of fact as to whether plaintiff’s actions were the sole proximate cause of his injuries since plaintiff admitted that it was his decision to use the ladder on the icy surface rather than ones his employer had placed inside the foundation:
“In short, the employer produced evidence that the ladders constituted adequate safety devices with the intended work area and that plaintiff was injured only because he unilaterally chose to use a ladder outside the proper work area despite instruction to work inside the foundation. In our view, a finder of fact could determine from this evidence ‘that plaintiff had adequate safety devices available; that he knew both that they were available and that he was expected to use them; that he chose for no good reason not to do so; and that had he not made that choice he would not have been injured’ (Cahill v. Triborough Bridge & Tunnel Auth., 4 NY3d 35, 40 [2004]). Accordingly, we agree with Supreme Court that questions of fact exist warranting the denial of plaintiffs’ motion for partial summary judgment (see Torres v. Mazzone Admin. Group, Inc., 46 Ad3 1040, 1041 [2007], lv denied 10 NY3d 706 [2008]; Gittleson v. Cool Wind Ventilation Corp., 46 AD3d 855, 856 [2007], lv denied 10 NY3d 715 [2008]; Meade v. Rock-McGraw, Inc., 307 AD2d 156, 159 [2003]; cf. Gallagher v. New York Post, 14 NY3d 83, 88-89 [2010]; Morin v. Machnick Bldrs., 4 AD3d at 670-671).”

8. Durmiaki v. International Business Machines Corp., et. al., 85 A.D.3d 960, 925 NYS2d 628 (2nd Dept. 2011).
This is yet another of the post Gallagher line of cases in which the Court granted plaintiff’s 240(1) motion and rejected the sole proximate cause defense because of a finding that plaintiff was not a recalcitrant worker.
The plaintiff had climbed an unsecured A-frame ladder to cut and remove a pipe located approximately ten-feet above the ground as instructed by his supervisor. While using a saw to cut the pipe, the pipe snapped and fell striking the ladder causing plaintiff to fall. In rejecting the sole proximate cause defense the Court held:

“In opposition to the plaintiff’s prima facie showing, the defendants failed to raise a triable issue of fact as to whether the plaintiff’s conduct was the sole proximate cause of his injury (see Gallagher v. New York Post, 14 NY3d 83, 88, 923 N.E.2d 1120, 896 N.Y.S.2d 732; Pichardo v. Aurora Contrs., Inc., 29 AD3d 879, 881, 815 N.Y.S.2d 263; cf. Robinson v. East Med. Ctr., LP, 6 NY3d 550, 847 N.E.2d 1162, 814 N.Y.S.2d 589; Montgomery v. Federal Express Corp., 4 NY3d 805, 828 N.E.2d 592, 795 N.Y.S.2d 490). Although the defendants contend that the plaintiff violated a safety rule requiring that all laborers work with a partner during demolition work, they offered no evidence that such a rule was communicated to the laborers (see Gallagher v. New York Post, 14 NY3d at 88). Similarly, the defendants’ contention that the plaintiff’s failure to inspect the hangers supporting the overhead pipe was the sole proximate cause of his injuries is without merit, since there is no evidence that he was ever instructed to follow such a procedure and he was not given an opportunity to inspect the hangers as he was specifically directed by his supervisor to cut the pipe at that time (see Kosavick v. Tishman Constr. Corp. of N.Y., 50 AD3d at 287-288; cf. Cahill v. Triborough Bridge & Tunnel Auth., 4 NY3d 35, 37, 823 N.E.2d 439, 790 N.Y.S.2d 74). Moreover, while the defendants established that manlifts, scaffolds, and harnesses were available at the worksite, there was no evidence that the plaintiff had been instructed to utilize these other safety devices or to avoid using the ladder (see Beamon v. Agar Truck Sales, Inc., 24 AD3d 481, 483, 808 N.Y.S.2d 232; cf. Cahill v. Triborough Bridge & Tunnel Auth., 4 NY3d at 37).”

9. Kuhn v. Camelot Association, Inc., 82 A.D.3d 1704, 919 NYS2d 684 (4th Dept. 2011).
The plaintiff was injured when he stepped from a roof on which he was working onto an elevated platform attached to a forklift when the forklift tipped over causing plaintiff to fall to the ground.
The Court, in a 3-2 decision affirmed the granting of plaintiff’s motion for summary judgment on his 240(1) claim.
The majority in rejecting the sole proximate cause defense stated:

“Although defendant contends that plaintiff should have utilized a ladder as a safety device, it presented no evidence that plaintiff had been instructed to use a ladder or that plaintiff knew or should known to use a ladder based on his training, prior practice and common sense’ (Ganger, 53 AD3d at 1053; see Ewing v. Brunner Intl., Inc., 60 A.D.3d 1323, 875 N.Y.S.2d 388). The owner of Watkins Builders summarily asserted in an affidavit that ‘all employees knew’ not to use the forklift to transport personnel, but he did not aver that he or anyone else instructed plaintiff to avoid using the forklift in that manner. Indeed, there is no evidence that plaintiff ‘received specific instructions to use a [ladder rather than the forklift] while [ascending and descending the roof] and chose to disregard those instructions’ (Cahill, 4 NY3d at 39). To the contrary, the deposition testimony of plaintiff and his coworkers established that the forklift was provided to them at the job site and that it had been used to transport workers, as well as materials, during the weeks prior to plaintiff’s accident. Further, it is undisputed that plaintiff’s foremen observed, facilitated and participated in the use of the forklift for the transport of workers (see generally Rico-Castro v. Do & Co. N.Y. Catering, Inc., 60 Ad3d 749, 750, 874 N.Y.S.2d 576; Pichardo v. Aurora Contrs., Inc., 29 AD3d 879, 880-881, 815 N.Y.S.2d 263). Indeed, one of the foremen, who had previously worked out of the forklift at an elevated height, had placed the forklift adjacent to the roof where plaintiff was working, and that foreman was operating the forklift at the time of the accident. The other foreman was on the roof with plaintiff when plaintiff used the forklift to descend therefrom. Thus, inasmuch as the forklift was furnished by plaintiff’s employer and its use as an alternative safety device for transporting personnel was approved by plaintiff’s supervisors, it cannot be said that plaintiff’s decision to use the forklift rather than the ladder to descend from the roof is the sole proximate cause of the accident (citations omitted).”

The dissent would have reversed holding a question of fact existed as to whether plaintiff’s action in exiting the roof by means of the forklift rather than an available ladder which he had used to get onto the roof was the sole proximate cause of the accident.

“The record is devoid of evidence that anyone from Watkins Builders instructed plaintiff with respect to the appropriate means to access or exit the roof. Instead, the record establishes that the use of the forklift to access or exit the roof had been an informal practice devised by Watkins Builders’ employees. Thus, plaintiff was presented with two means of descending from the roof, i.e., the forklift and the ladder, and he was neither encouraged nor discouraged from using either means. The record further establishes that plaintiff had received training from previous employers regarding the use of a ladder but that he had not received any training with respect to a forklift as a means of transporting workers before his employment with Watkins Builders. Consequently, we conclude that a triable issue of fact exists whether plaintiff, ‘based on his training, prior practice and common sense, knew or should have known’ to use the ladder instead of the forklift to exit the roof (Gimeno v. American Signature, Inc., 67 AD3d 1463, 1464, 888 N.Y.S.2d 839, lv dismissed 14 N.Y.3d 785, 925 N.E.2d 919, 899 N.Y.S.2d 117; cf. Montgomery v. Federal Express Corp., 4 NY3d 805, 828 N.E.2d 592, 795 N.Y.S.2d 490).”

Thus, the Courts will still dismiss a 240(1) claim if it is established that adequate safety devices were provided and the plaintiff either chooses not to use them or misuses them.

10. Paz v. City of New York, et. al., 85 A.D.3d 519, 925 NYS2d 453 (1st Dept. 2011).
The Court, in dismissing plaintiff’s 240(1) claim, merely stated that the plaintiff knew he was to use a ladder to climb onto an elevated scaffold, holding:
“Specifically, if adequate safety devices are provided and the worker either chooses for no good reason not to use them, or misuses them, then liability under §240(1) does not attach (see Cahill v. Triborough Bridge & Tunnel Auth., 4 NY3d 35, 40, 823 N.E.2d 439, 790 N.Y.S.2d 74 [2004]). Here, the record established that plaintiff knew that he was expected to use a ladder to climb onto the elevated scaffold, untie it, and lower it to the ground, but chose for no good reason not to do so. The record further demonstrates that the scaffold was tied to an elevated concrete ledge for the purpose of preventing pedestrians from gaining access to it overnight, not to support the weight of a worker balancing between the ledge and the scaffold as he put on his safety harness. Hence, the court correctly denied plaintiff’s motion for summary judgment as to this cause of action and granted defendants-respondents’ cross motion for summary judgment dismissal.”

11. Maloney v. J.W. Pfeil & Company, Inc., 84 A.D.3d 1632, 924 N.Y.S.2d 586 (3d Dept. 2011).
Plaintiff was standing on top of a six-foot ladder installing sheetrock when he fell and was injured.
The Court in dismissing plaintiff’s 240(1) claim on the grounds that plaintiff’s conduct was the sole proximate cause of the accident detailed the facts which made plaintiff a recalcitrant worker:

“Contrary to plaintiff’s argument, Supreme Court correctly dismissed his Labor Law §240(1) cause of action. Significantly, liability under that statute ‘requires [the] plaintiff to demonstrate that [the] defendants violated that statute and that the statutory breach proximately caused [the] plaintiff’s accident’ (Weinberg v. Alpine Improvements, LLC, 48 AD3d 915, 916, 851 N.Y.S.2d 692 [2008]). Here, depositions from plaintiff’s supervisor and coworker established that numerous safety devices appropriate for the work that plaintiff was performing at the time of the accident, such as eight-foot ladders, baker’s scaffolds, ‘stilts’ and mechanical lifts, were available at the job site in the building. In his deposition testimony, plaintiff admitted knowing that there were other safety devices in other locations in the building better suited for the type of work he was about to perform and that he had routinely used these devices while working on this project. He acknowledged that a baker’s scaffold was in his immediate work area and, at the time of his fall, was being used by an associate working with him. Plaintiff also acknowledged that the stepladder he was using at the time of his fall, while not defective, was not tall enough for the work he was performing, and he admitted knowing that it contained a written warning never to stand on the top cap of the ladder when using it. Given this proof, we find that defendants made a prima facie showing that Labor Law §240(1) was not violated (see id. At 917; see also Jock v. Landmark Healthcare Facilities, LLC, 62 AD3d 1070, 1071, 879 N.Y.S.2d 227 [2009]), shifting the burden to plaintiff to raise a triable issue of fact as to this claim.

Plaintiff testified that he tried to find a more appropriate safety device near where he was working and that none was available. However, he admitted that he confined his efforts in that regard to the second floor of the building and did not look in other areas of the work site for a device that would be more suitable for his work (see Robinson v. East Med. Ctr., LP, 6 NY3d 550, 555, 847 N.E.2d 1162, 814 N.Y.S.2d 589 [2006]; Torres v. Mazzone Admin. Group, Inc., 46 AD3d 1040, 1041, 848 N.Y.S.2d 381 [2007], lv denied 10 N.Y.3d 706, 886 N.E.2d 804,857 N.Y.S.2d 39 [2008]). In addition, plaintiff acknowledged that he chose the six-foot ladder not because he was ordered to do so or because he was under some time constraint within which he had to complete the job, but because, in his own words, ‘it was the quickest thing to grab.’ Under the circumstances, defendants have established that adequate safety devices were readily available on the job site and that plaintiff’s decisions ‘ to use a six-foot ladder that he knew was too short for the work to be accomplished and then standing on the ladder’s top cap in order to reach the work – were, as a mater of law, the sole proximate cause’ of his injuries (Robinson v. East Med. Ctr., LP, 6 NY2d at 555; see Torres v. Mazzone Admin. Group, Inc., 46 AD3d at 1041).”

12. Torres v. Our Townhouse, LLC, et al., 91 A.D.3d 549, 937 N.Y.S.2d 53 (1st Dept. 2012).
Plaintiff fell to the ground while descending a 12-foot high sidewalk bridge without using a ladder, scaffold or any other safety device. The Court, in granting summary judgment for the plaintiff held, citing Gallagher, “Even if the defendants’ evidence suggested that there might have been a ladder in the chassis under the truck at the work site, no evidence was presented that plaintiff knew where the ladder was or that he knew he was expected to use it and for no good reason chose not to do so.”

13. Nechifor v. RH Atlantic-Pacific, LLC, et al, 92 A.D.3d 514, 938 N.Y.S.2d 308 (1st Dept. 2012).
The Court affirmed summary judgment for the plaintiff who was injured when he attempted to climb down the side of a scaffold. Again citing Gallagher, the Court held:
“Even assuming that plaintiff knew that a ladder or other appropriate safety devices were readily available to him, there is no evidence that plaintiff knew that he was expected to use the safety devices for the assigned task.”

14. Augustyn v. City of New York, et. al., 95 A.D.3d 683, 944 N.Y.S.2d 146 (1st Dept. 2012).
The plaintiff while engaging in lead paint removal work, fell from a sidewalk bridge. The Court reversing the lower Court, granted plaintiff’s motion for summary judgment on his §240(1) claim rejecting the sole proximate cause defense, holding “…the evidence does not show that plaintiff was expected to or instructed to use a harness while walking along the sidewalk bridge…the harnesses were available for use only on the fire escapes, that workers were not expected to use harnesses while on the sidewalk bridges and that no rigging existed for the use of the harness on the bridge.”

15. Dwyer v. Central Park Studios, Inc., et. al., 2012 NY Slip Op 6184 (1st Dept. 2012).
Plaintiff was standing on a ladder attempting to install a large piece of sheetrock in an apartment ceiling. He was holding it with his left hand and as he reached for his screw gun with his right hand, the ladder collapsed, plaintiff fell and the sheetrock fell on him. In reversing the denial of the plaintiff’s motion, the Court granted his summary judgment on his 240(1) claim rejecting the sole proximate cause defense. Citing Gallagher, the Court stated:
“Even if the other ladders were available at the job site, there was no showing that plaintiff was expected, or instructed, to use those ladders and for no good reason chose not to do so nor is there any evidence that plaintiff was told not to use the ladder he used.”

16. Tzic v. Kasampas, et. al., 93 A.D.3d 438, 940 N.Y.S.2d 218 (1st Dept. 2012).
The plaintiff fell 15 feet from an opening in a sidewalk shed that extended around a building. The Court granted plaintiff’s motion for summary judgment of his §240(1) claim rejecting defendants’ argument that the plaintiff was a recalcitrant worker and his actions in covering the opening with a tarp were the sole proximate cause of the accident.
“It is true that where a plaintiff’s own actions are the sole proximate cause of the accident, there can be no liability” under Labor Law §240 (see Cahill v. Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39, 823 NE2d 439, 790 NYS2d 74 [2004]). However, to raise an issue of fact regarding plaintiff’s recalcitrance, the owners were required to show that: (a) plaintiff had adequate safety devices at his disposal; (b) he both knew about them and that he was expected to use them; (c) for “no good reason” he chose not to use them; and (d) had he used them, he would have been injured (see Auriemma, 82 AD3 at 10).

The owners’ assertion that plaintiff covered the opening with tarp and then carelessly walked over it is of no moment. First, this assertion is speculative. Second, once the statutory violation has been established as a proximate cause of the accident, plaintiff’s alleged contributory negligence becomes irrelevant (see Figueiredo v. New Palace Painters Supply Co. Inc., 39 AD3d 363, 364, 833 NYS2d 492 [2007]).”

NOTE: See in reference to the recalcitrant worker defense , Gatto v. Clifton Park Senior Living, LLC, 90 A.D.3d 1387, 935 N.Y.S.2d 366 (3rd Dept. 2011) granting plaintiff’s §240(1) summary judgment motion. The plaintiff was using his own stilts to tape a nine foot ceiling, when one of the bolts on a stilt broke causing it to collapse and plaintiff to fall. In rejecting the recalcitrant worker defense the Court held:
“Neither the owner nor general contractor provided any type of safety equipment to tapers on the project. While ladders and baker’s scaffolds may have been present at the scene, there is no proof that using them would have been feasible or more appropriate for the project than working off of stilts. No one instructed plaintiff to use a ladder or scaffold, no did anyone instruct him not to use stilts. Therefore, plaintiff was not a recalcitrant worker – i.e., he did not fail or refuse to use available safety equipment…”

See Also: LUNA v ZOOLOGICAL SOCIETY OF BUFFALO, INC., 101 A.D.3d 1745 (4th Dept2012) In which the Court rejected the recalcitrant worker defense despite plaintiff having been instructed not to work in the area of the accident and violated those instructions stating; “Although defendant submitted evidence that plaintiff was instructed not to work in a particular area and violated those instructions, “the nondelegable duty imposed upon the owner and general contractor under Labor Law § 240 (1) is not met merely by providing safety instructions or by making other safety devices available, but by furnishing, placing and operating such devices so as to give [a worker] proper protection” (Long v Cellino & Barnes, P.C., 68 AD3d 1706, 1707, 892 N.Y.S.2d 692 [internal quotation marks omitted]), which was not done here. Thus, “[t]he mere failure by plaintiff to follow safety instructions does not render plaintiff a recalcitrant worker” (Whiting v Dave Hennig, Inc., 28 AD3d 1105, 1106, 815 N.Y.S.2d 382″

It is thus submitted that with regard to the recalcitrant worker defense we have come full circle and are back to the law pre Cahill.