Young v. Syroco, Inc.

Order unanimously affirmed with costs. Memorandum: Partial summary judgment was properly awarded to plaintiff on the issue of defendant’s liability pursuant to Labor [1012] Law § 240 (1). Plaintiff fell 30 feet from the roof of a building on a site owned by defendant. It is undisputed that there were no safety nets or other safety devices in the area where plaintiff fell. Although safety nets were present in other areas, the mere presence of safety devices on the site does not discharge defendant’s duty (see, Zimmer v Chemung County Performing Arts, 65 NY2d 513, 514, rearg denied 65 NY2d 1054; Adams v Cimato Bros., 207 AD2d 997, 997-998; Neville v Deters, 175 AD2d 597). Defendant further contends that plaintiff was instructed by his supervisor not to work in any areas where safety nets were not present and to place safety nets in an area before proceeding to work there. The mere failure by plaintiff to follow safety instructions does not render plaintiff a recalcitrant worker (see, Stolt v General Foods Corp., 81 NY2d 918, 920; Hagins v State of New York, 81 NY2d 921, 922). Moreover, plaintiff is not required to guarantee his own safety by placing appropriate safety devices in a proper manner (see, Heath v Soloff Constr., 107 AD2d 507, 510-511; see also, Haystrand v County of Ontario, 207 AD2d 978). (Appeal from Order of Supreme Court, Onondaga County, Mordue, J.—Labor Law.) Present—Lawton, J. P., Wesley, Doerr, Davis and Boehm, JJ.