Devine v. Chase Manhattan Bank, N. A.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Franco, J.), dated November 17, 1999, which denied their motion for partial summary judgment on the issue of liability against the defendants Chase Manhattan Bank, N. A. and Prudential Securities, Inc., on the cause of action pursuant to Labor Law § 240 (1).

Ordered that the order is affirmed, with costs.

The Supreme Court properly denied the plaintiffs’ motion for partial summary judgment on the issue of the respondents’ liability under Labor Law § 240 (1). There is an issue of fact as to whether the injured plaintiff refused to use safety devices that were made available to him thereby rendering him a “recalcitrant worker” (see, Jastrzebski v North Shore School Dist., 223 AD2d 677, affd 88 NY2d 946; see generally, Gordon v Eastern Ry. Supply, 82 NY2d 555, 562-563; Stolt v General Foods Corp., 81 NY2d 918). Bracken, J. P., Santucci, Altman and Florio, JJ., concur.