McLean v. Martin E. Vahue & Son Builders, Inc.

—Order insofar as appealed from unanimously reversed on the law with costs and motion granted. Memorandum: Plaintiff, a carpenter, was injured when he fell over 20 feet to the ground from the roof of a home under construction. Supreme Court erred in denying plaintiff’s motion for partial summary judgment on the issue of liability under Labor Law § 240 (1). Plaintiff submitted proof in admissible form that he was engaged in the erection of a building, that he fell from an elevated work site and that there were no safety devices "so constructed, placed and operated as to give proper protection to a person so employed” (Labor Law § 240 [1]; see, Brown v Sagamore Hotel, 184 AD2d 47, 51; Walsh v Baker, 172 AD2d 1038, 1039). In opposition to the motion, defendant and third-party defendant failed to submit evidence showing the existence of a triable issue of fact (see, Walsh v Baker, supra, at 1039; Heath v Soloff Constr., 107 AD2d 507, 511). "[T]he fact that the accident was unwitnessed does not require a trial; plaintiff’s account of the accident was uncontroverted” (Madigan v United Parcel Serv., 193 AD2d 1102, 1103; see, Allman v Ciminelli Constr. Co., 184 AD2d 1022; Walsh v Baker, supra). We reject defendant’s contention that the accident was caused by plaintiff’s refusal to use other available safety devices. A contractor may not " 'escape the imposition of absolute liability merely by demonstrating that there was present somewhere at the job site [another safety device] which might have been used by a worker for the safer performance of his assigned work’ ” (Heath v Soloff Constr., supra, at 512, quoted in Brown v Sagamore Hotel, supra, at 51-52). (Appeal from Order of Supreme Court, Ontario County, Henry, Jr., J.— Labor Law § 240 [1].) Present—Denman, P. J., Green, Balio, Callahan and Boehm, JJ.