recalcitrant worker defense in New York

2025Their reliance on the recalcitrant worker defense was misplaced because that defense requires a showing that plaintiff refused to use a safety device that was provided to him ( see Stolt v General Foods Corp. , 81 NY2d 918, 920 [1993]).

2025Thus, the recalcitrant worker defense "has no application where, as here, no adequate safety devices were provided" ( Stolt , 81 NY2d at 920), and any conduct on plaintiff's part would go to comparative negligence, which is not a defense to a plaintiff's Labor Law § 240(1) claim ( see Blake v Neighborhood Hous.

2002However, “[e]vidence of such instructions does not, by itself, create an issue of fact sufficient to support a recalcitrant worker defense” (Gordon, 82 NY2d at 563 ; see Enright v Buffalo Tech.

1997Supply, supra; Stolt v General Foods Corp., supra; compare, Jastrzebski v North Shore School Dist., 223 AD2d 677 , affd 88 NY2d 946 ) are sufficient to raise a triable issue of fact as to the defendants’ recalcitrant worker defense.

2005The recalcitrant worker defense is thus not applicable as it is limited to circumstances where a worker is injured as a result of his/her refusal to use available safety devices (see Hagins v State of New York, 81 NY2d 921 [1993]; Balthazar v Full Circle Constr.

2005The recalcitrant worker defense is thus not applicable as it is limited to circumstances where a worker is injured as a result of his/her refusal to use available safety devices (see Hagins v State of New York, 81 NY2d 921 [1993]; Balthazar v Full Circle Constr.

2001Finally, the report by the United States Department of Labor, Occupational Safety and Health Administration on the investigation into the accident concluded that “the cause of the accident was the result of the act of the injured worker.” As to the claim that the plaintiff may not recover because he was a “recalcitrant worker,” it is well settled that the recalcitrant worker defense requires a showing that the injured worker refused to make use of available safety devices provided by the owner or employer (see, Stolt v General Foods Corp., 81 NY2d 918, 920 ; Jastrzebski v North Shore School Di

2000In asserting a recalcitrant worker defense, a defendant must establish that plaintiff deliberately or purposely refused an order to use safety devices actually put in place or made available by the owner or contractor (see, Hagins v State of New York, supra, at 922-923; Stolt v General Foods Corp., 81 NY2d 918, 920 ; Jastrzebski v North Shore School Dist., 223 AD2d 677, 679-680 , affd 88 NY2d 946 ; Kulp v Gannett Co. [appeal No. 1], 259 AD2d 969 ).

2001Finally, the report by the United States Department of Labor, Occupational Safety and Health Administration on the investigation into the accident concluded that “the cause of the accident was the result of the act of the injured worker.” As to the claim that the plaintiff may not recover because he was a “recalcitrant worker,” it is well settled that the recalcitrant worker defense requires a showing that the injured worker refused to make use of available safety devices provided by the owner or employer (see, Stolt v General Foods Corp., 81 NY2d 918, 920 ; Jastrzebski v North Shore School Di

2000In asserting a recalcitrant worker defense, a defendant must establish that plaintiff deliberately or purposely refused an order to use safety devices actually put in place or made available by the owner or contractor (see, Hagins v State of New York, supra, at 922-923; Stolt v General Foods Corp., 81 NY2d 918, 920 ; Jastrzebski v North Shore School Dist., 223 AD2d 677, 679-680 , affd 88 NY2d 946 ; Kulp v Gannett Co. [appeal No. 1], 259 AD2d 969 ).

2013While this action by claimant could go to comparative negligence (which is not available in a Labor Law § 240 [1] action), it was not the sole proximate cause of the accident and does not establish the recalcitrant worker defense (see Kouros v State of New York, 288 AD2d 566, 567 [2001]).

2013While this action by claimant could go to comparative negligence (which is not available in a Labor Law § 240 [1] action), it was not the sole proximate cause of the accident and does not establish the recalcitrant worker defense (see Kouros v State of New York, 288 AD2d 566, 567 [2001]).

2015Corp., 268 AD2d 96, 99 [1st Dept 2000]; Hernandez v 151 Sullivan Tenant Corp., 307 AD2d 207 [1st Dept 2003]).

2005Corp., 268 AD2d 96 [2000]).

2022Durst/Hunter failed to make a showing that plaintiff deliberately refused to obey a direct and immediate instruction to use an available safety device or a standing order to not stand on the edge of the bathtub so as to invoke the recalcitrant worker defense ( see Saavedra , 143 AD3d at 615-616 ; Powers v Lino Del Zotto & Son Bldrs., Inc ., 266 AD2d 668 [3d Dept 1999]).

2022Durst/Hunter failed to make a showing that plaintiff deliberately refused to obey a direct and immediate instruction to use an available safety device or a standing order to not stand on the edge of the bathtub so as to invoke the recalcitrant worker defense ( see Saavedra , 143 AD3d at 615-616 ; Powers v Lino Del Zotto & Son Bldrs., Inc ., 266 AD2d 668 [3d Dept 1999]).

2026Defendants' contention that plaintiff disobeyed a directive of the site safety manager to use the scissor lift to perform his elevated faÇade scraping work is unavailing as there is no evidence in the record, including from defendants' expert, to show that the scissor lift would have allowed the workers to safely perform their work ( see Gallagher v New York Post , 14 NY3d 83, 88 [2010]).

2024NO. 169 RECEIVED NYSCEF: 09/30/2024 beam pocket and that he '"knew he was expected to use [the wood plank] but for no good reason chose not to do so"' (Ortiz v City of New York, 224 AD3d 631 ,632 [1st Dept 2024], quoting Gallagher v New York Post, 14 NY3d 83, 88 [2010]; see also Vitucci v Durst Pyramid LLC, 205 AD3d 441 ,444 [1st Dept 2022] [reasoning that the defendants "failed to make a showing that plaintiff deliberately refused to obey a direct and immediate instruction to use an available safety device or a standing order ... so as to invoke the recalcitrant worker defense"]).

2012Dunn, Inc., 29 AD3d at 1139).

2012Dunn, Inc., 29 AD3d at 1139).

2017Conversely, in Smith , the Court denied plaintiff’s motion for partial summary judgment when one version of the facts established the applicability of the recalcitrant worker defense inasmuch as a witness testified that plaintiff chose to engage in work without the functional safety devices made available to him (Smith at 363 [“Thus, by plaintiff’s testimony the accident occurred because the safety devices failed; by Toth’s version plaintiff fell off the roof because he declined to use the safety devices supplied to him.

2004If 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 plaintiffs conten tion that an owner or contractor violates the statute and is absolutely liable to an injured worker not

2003Supply, supra at 562-563; Stolt v General Foods Corp., 81 NY2d 918, 920 ). 3 Defendants’ and MRL’s efforts to rely on comparative negligence principles or plaintiffs assumption of a risk are likewise rejected (see Stolt v General Foods Corp., supra at 920; Bland v Manocherian, 66 NY2d 452, 459 ; Zimmer v Chemung County Performing Arts, supra at 524; cf. Weininger v Hagedorn & Co., 91 NY2d 958, 960 ).

1996However, since the protection afforded a worker by Labor Law § 240 (1) is salutary and in furtherance of the public policy to place ultimate responsibility for safety practices at construction jobs on the owner and general contractor instead of on workers (see, Zimmer v Chemung County Performing Arts, 65 NY2d 513, 520-521 ), the recalcitrant worker defense has been circumscribed by constrictive rules.

2003Lib. of Hicksville Union Free School Dist., 240 AD2d 461 [1997]).

2001Lib., 240 AD2d 461 ; Tennant v Curcio, 237 AD2d 733 ; Heath v Soloff Constr., 107 AD2d 507 ).

2003Supply, 82 NY2d 555, 563 [1993]; see Hagins v State of New York, 81 NY2d 921, 922-923 [1993]; Salotti v Wellco, Inc., 273 AD2d 862 [2000]).

2000In order to establish a recalcitrant worker defense, defendants, must show that plaintiff deliberately refused to use available safety devices provided by the owner or contractor (see, Hagins v State of New York, 81 NY2d 921, 922-923 ; Stolt v General Foods Corp., 81 NY2d 918, 920 ; Salotti v Wellco, Inc., 273 AD2d 862 ).

2017This defense allows a defendant to escape liability if it demonstrates that the plaintiff refused to use the safety devices provided (Gordon at 562-563 ; Stolt at 920 ; Hagins v State of New York, 81 NY2d 921, 922-923 [1993]; Miraglia v H&L Holding Corp., 306 AD2d 58, 58 [1st Dept 2003]; Smith v Hooker Chems. & Plastics Corp., 89 AD2d 361, 366 [4th Dept 1982]).

2004We find that the statement by FRM’s site superintendent, Dominic Rubio, contained in his affidavit that “[a]t some time prior to 10/31/98, the exact date and time [of] which [he did] not recall,” he instructed plaintiff to wear a safety harness is far too equivocal to support the recalcitrant worker defense (cf. Miraglia v H&L Holding Corp., 306 AD2d 58 [2003] [one day before the accident, worker was repeatedly instructed to use a safety device]).

2025Defendants' contention that plaintiff disobeyed a directive of the site safety manager to use the scissor lift to perform his elevated faÇade scraping work was not raised below and is unpreserved ( see Ervin v Consolidated Edison of N.Y ., 93 AD3d 485, 485 [1st Dept 2012]).

2025Plaintiff is correct “[d]efendants’ recalcitrant worker defense, predicated on plaintiff’s failure to [stand clear of the excavator], is unavailing, . . . there being no evidence that plaintiff was given an immediate instruction” to do so (Olszewski v Park Terrace Gardens, Inc., 306 AD2d 128, 128-29 [1st Dept 2003]; Vitucci v Durst Pyramid LLC, 205 AD3d 441 , 444 [1st Dept 2022] [defendants “failed to make a showing that plaintiff deliberately refused to obey a direct and immediate instruction to . . . not stand on the edge of the bathtub so as to invoke the recalcitrant worker defense”]).

2017Stated differently, the failing plywood cover is a violation of Labor Law § 240 (1) (Restrepo at 540 ; Alonzo at 449-450), which violation—even if plaintiff was recalcitrant in failing to use his lanyard—serves to preclude the applicability of the recalcitrant worker or the sole proximate cause defense (Davidson at 903 ; see Blake at 290 [“Under Labor Law § 240 (1) it is conceptually impossible for a statutory violation (which serves as a proximate cause for a plaintiff’s injury) to occupy the same ground as a plaintiff’s sole proximate cause for the injury.

2017Stated differently, the failing plywood cover is a violation of Labor Law § 240 (1) (Restrepo at 540 ; Alonzo at 449-450), which violation—even if plaintiff was recalcitrant in failing to use his lanyard—serves to preclude the applicability of the recalcitrant worker or the sole proximate cause defense (Davidson at 903 ; see Blake at 290 [“Under Labor Law § 240 (1) it is conceptually impossible for a statutory violation (which serves as a proximate cause for a plaintiff’s injury) to occupy the same ground as a plaintiff’s sole proximate cause for the injury.

2017Co., Inc., 134 AD3d 1405 , 1407 [2015]; see also Doto v Astoria Energy II, LLC, 129 AD3d at 662 ).

2015Generally, the party moving for dismissal of a defense as a matter of law bears the burden of proving its entitlement to such relief (see Town of Hempstead v Lizza Indus., 293 AD2d 739, 740 [2002]).