failure to follow instruction in New York

2015It is well settled that the failure to follow an instruction by an employer or owner to avoid unsafe practices does not consti tute a refusal to use available, safe and appropriate equipment, and we therefore agree with plaintiffs that plaintiff’s failure to follow the owner’s instructions and advice does not preclude defendant’s liability under Labor Law § 240 (1) (see Miles v Great Lakes Cheese of N.Y., Inc., 103 AD3d 1165 , 1167 [2013]; see also Luna v Zoological Socy. of Buffalo, Inc., 101 AD3d 1745 , 1746 [2012]; see generally Gordon, 82 NY2d at 563 ).

2015It is well settled that the failure to follow an instruction by an employer or owner to avoid unsafe practices does not consti tute a refusal to use available, safe and appropriate equipment, and we therefore agree with plaintiffs that plaintiff’s failure to follow the owner’s instructions and advice does not preclude defendant’s liability under Labor Law § 240 (1) (see Miles v Great Lakes Cheese of N.Y., Inc., 103 AD3d 1165 , 1167 [2013]; see also Luna v Zoological Socy. of Buffalo, Inc., 101 AD3d 1745 , 1746 [2012]; see generally Gordon, 82 NY2d at 563 ).

2023In evaluating such a defense, "[i]t is well settled that the failure to follow an instruction by an employer or owner to avoid unsafe practices does not constitute a refusal to use available, safe and appropriate equipment" ( Fazekas v Time Warner Cable , Inc. , 132 AD3d 1401 , 1403-1404 [4th Dept 2015]) and does not "render [a] plaintiff the sole proximate cause of [their] injuries" ( Schutt v Bookhagen , 186 AD3d 1027, 1029 [4th Dept 2020], appeal dismissed 36 NY3d 939 [2020]; see generally Salzer v Benderson Dev.

1999No material issues of fact as to whether respondents terminated petitioner in bad faith are raised by petitioner’s disputed assertions that the positive hair sample drug test, assertedly the basis for the termination, is inherently unreliable and was further tainted in this instance by a failure to follow standard procedures (see, Matter of Johnson v Katz, 68 NY2d 649 ).

1995In support of his position, the plaintiff improperly relies on the "trilogy” of Supreme Court cases, Service v Dulles (supra), Accardi v Shaughnessy (supra), and Vitarelli v Seaton (supra), decided in the 1950’s. * Specifically, the plaintiff, in relying on these cases, contends that even if the Fourteenth Amendment of the United States Constitution did not require the DOC to afford him procedural due process in the first instance, once it adopted certain procedures for determining whether an employee should be discharged, the DOC was obliged to follow them.

1995In support of his position, the plaintiff improperly relies on the "trilogy” of Supreme Court cases, Service v Dulles (supra), Accardi v Shaughnessy (supra), and Vitarelli v Seaton (supra), decided in the 1950’s. * Specifically, the plaintiff, in relying on these cases, contends that even if the Fourteenth Amendment of the United States Constitution did not require the DOC to afford him procedural due process in the first instance, once it adopted certain procedures for determining whether an employee should be discharged, the DOC was obliged to follow them.

1995In support of his position, the plaintiff improperly relies on the "trilogy” of Supreme Court cases, Service v Dulles (supra), Accardi v Shaughnessy (supra), and Vitarelli v Seaton (supra), decided in the 1950’s. * Specifically, the plaintiff, in relying on these cases, contends that even if the Fourteenth Amendment of the United States Constitution did not require the DOC to afford him procedural due process in the first instance, once it adopted certain procedures for determining whether an employee should be discharged, the DOC was obliged to follow them.

1995Accordingly, the plaintiff, as a probationary employee, had no legitimate claim of entitlement to his position, and his allegation of a constitutional procedural due process violation based on the defendants’ failure to follow rule 3.25.040 is without any merit (see, Board of Regents v Roth, supra).