Kulp v. Gannett Co.

Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied plaintiff’s motion for partial summary judgment on liability pursuant to Labor Law § 240 (1). Plaintiff submitted proof that the safety harness and lanyard provided by his employer, third-party defendant, F.L. Heughes & Co., Inc. (Heughes), could not be tied off while he was performing his work and that no other safety devices were available to prevent him from falling. That evidence satisfied his “burden of establishing, prima facie, that the safety device provided by [Heughes] was not so placed as to give proper protection to [plaintiff]” (Watso v Metropolitan Life Ins. Co., 228 AD2d 883 , 884). In opposition to the motion, however, Heughes submitted proof that plaintiff was able to tie off to a safety line or a beam and that plaintiff was instructed at weekly safety meetings to tie off at all times when working at a height. That evidence “tended to demonstrate that [plaintiff], rather than being unable to tie off, purposefully did not do so” (Watso v Metropolitan Life Ins. Co., supra, at 884 ), and raised triable issues of fact whether the safety device provided to plaintiff afforded proper protection and whether plaintiff was a recalcitrant worker to whom the protections of Labor Law § 240 (1) do not apply (see, Harrington v State of New York, 255 AD2d 819 ; Job v 1133 Bldg. Corp., 251 AD2d 459 ; Isnardi v Genovese Drug Stores, 242 AD2d 671 , 672; Watso v Metropolitan Life Ins. Co., supra, at 884-885). (Appeal from Order of Supreme Court, Monroe County, Calvaruso, J. — Summary Judgment.) Present — Denman, P. J., Green, Hayes, Pigott, Jr., and Balio, JJ.