Stewart v. Playland Center, Inc.

Order, Supreme Court, Bronx County (Nelson S. Roman, J.), entered on or about June 4, 2003, which, inter alia, denied plaintiffs motion for summary judgment as to liability upon his Labor Law § 240 (1) claim, unanimously affirmed, without costs.

Plaintiff, while employed as a carpenter at a renovation project, fell from a ladder he was using in framing a wall. While it is clear that the ladder, which had a defective rung, did not provide protection in accordance with Labor Law § 240 (1), the testimony of plaintiffs employer to the effect that shortly before the accident plaintiff had been specifically instructed to use an available scissor lift instead of a ladder to perform his assigned task was sufficient to raise a triable issue as to whether plaintiff was a “recalcitrant worker” (see Gordon v Eastern Ry. Supply, 82 NY2d 555, 562 [1993]). Concur—Buckley, P.J., Lerner, Friedman, Marlow and Sweeny, JJ.