Cahill v. Triborough Bridge and Tunnel Authority

• Decision Date: 24 February 2004
• Docket Number: 2470.
• Citation: 2004 NY Slip Op 01213,4 A.D.3d 236,771 N.Y.S.2d 655
• Parties: TIMOTHY CAHILL, Respondent, v. TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY, Appellant.
• Court: New York Supreme Court — Appellate Division

4 A.D.3d 236

771 N.Y.S.2d 655

2004 NY Slip Op 01213

TIMOTHY CAHILL, Respondent, v. TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY, Appellant.

2470.

Appellate Division of the Supreme Court of the State of New York, First Department.

February 24, 2004.

Order, Supreme Court, New York County (Edward Lehner, J.), entered June 11, 2003, which granted plaintiff's motion for summary judgment on the issue of liability, for violation of Labor Law § 240 (1), affirmed, without costs.

In the course of greasing coil rod ties inside a 35-foot form wall located beneath the Triborough Bridge, plaintiff, a construction laborer, sustained personal injuries when he fell approximately 15 feet to the ground as he attempted to ascend the form while wearing a safety harness. Although this safety harness, which is equipped with a positioning hook and lanyards, was designed to be directly attached to a safety line, there was no such safety line available to plaintiff. Plaintiff was then compelled to use the harness's own positioning hook to inch his way up the form by releasing the hook, climbing up and reconnecting the hook to the form.

Plaintiff moved for summary judgment on the issue of liability for violation of Labor Law § 240 (1). The IAS court granted the motion, finding, inter alia, that defendant failed to provide plaintiff with proper safety devices to prevent his fall and that plaintiff was not a recalcitrant worker for not availing himself of the worksite's other safety equipment. We affirm.

We find no question that the recalcitrant worker defense is not applicable to the facts of the instant matter since defendant in response to plaintiff's prima facie showing failed to raise a triable issue as to whether plaintiff had "disobeyed an immediate instruction to use a harness or other actually available safety device" (Sanango v 200 E. 16th St. Hous. Corp., 290 AD2d 228, 228 [2002]). There is no evidence that plaintiff refused an immediate instruction to use any particular safety device in ascending or descending from his work platform. While defendant acknowledged that a general safety instruction was given to plaintiff approximately three weeks before the incident, it is firmly established in this Department that an immediate instruction is a requisite of the "recalcitrant worker" defense (see Olszewski v Park Terrace Gardens, 306 AD2d 128 [2003]; DePalma v Metropolitan Transp. Auth., 304 AD2d 461, 462 [2003]; Sanango, supra; Laquidara v HRH Constr. Corp., 283 AD2d 169, 170 [2001]).

Defendant also failed to raise an issue of fact with regard to plaintiff's alleged refusal to obey an order to use safety devices immediately available to him. Defendant may not avoid liability due to the availability of a safety device somewhere at the worksite, or by reason of plaintiff's purported failure to heed a general safety instruction given to him at some point in the past (see Crespo v Triad, Inc., 294 AD2d 145, 147 [2002]; Balthazar v Full Circle Constr. Corp., 268 AD2d 96, 99 [2000]; Powers v Del Zotto & Son Bldrs., 266 AD2d 668 [1999]).

Concur — Rosenberger, Williams and Lerner, JJ.

Andrias, J.P., dissents in a memorandum as follows:

I respectfully dissent and would reverse and deny plaintiff's motion for summary judgment on the issue of liability for violation of Labor Law § 240 (1) and remand the matter for further proceedings.

In granting plaintiff summary judgment on his Labor Law § 240 (1) claim, the motion court found that defendant failed to see that plaintiff was provided with proper safety devices so as to prevent his fall. It also discounted defendant's "recalcitrant worker" defense because defendant acknowledged that the instructions to plaintiff as to the use of the safety devices were given approximately three weeks prior to the accident. Quoting Sanango v 200 E. 16th St. Hous. Corp. (290 AD2d 228 [2002]), the court held that plaintiff may not be deemed a recalcitrant worker "`where there is no evidence that he disobeyed an immediate instruction to use a harness or other available safety devices' (emphasis supplied)."

However, there is nothing in the statute that necessarily leads to a conclusion that disobedience of an immediate order is a prerequisite for a finding that a worker who fails or refuses to use available safety devices is recalcitrant. If that were so the more appropriate term would be an "insubordinate worker."

While this and other Departments have repeatedly used the "immediate" instruction language, in Smith v Hooker Chems. & Plastics Corp. (89 AD2d 361 [1982], appeal dismissed 58 NY2d 824 [1983]), the case from which the recalcitrant worker defense is derived, the Fourth Department (per then Justice Simons) reversed and denied the plaintiff summary judgment on his Labor Law § 240 (1) claim, rejecting plaintiff's contention that an owner or contractor violates the statute and is absolutely liable to an injured worker not only for injuries caused by the failure to supply proper safety devices or for supplying defective ones, but is also liable as an insurer even if the worker refuses to use satisfactory available safety devices. In so ruling, the Court stated: "Plaintiff contends that the Legislature intended as much, that it placed an absolute duty of supplying and supervising the correct use of safety equipment upon owners and contractors when it enacted subdivision 1 of section 240 of the Labor Law. The statute does not impose such an obligation on defendants by its terms, however, and the Legislature has experienced no difficulty in the past in imposing such liability when it intended to do so. Thus[,...