KUMAR v. STAHLUNT ASSOCIATES

The differing accounts of the manner in which plaintiff's construction site accident occurred and the conflicting expert affidavits as to which protective devices should have been utilized raise triable issues of fact as to whether the safety devices provided afforded proper protection ( see Weber v. 1111 Park Ave. Realty, 253 A.D.2d 376), and whether plaintiff's conduct constituted the sole proximate cause of the accident ( see Bahrman v. Holtsville Fire Dist., 270 A.D.2d 438). Based on this record, we reject defendants-respondents' contention that plaintiff was a recalcitrant worker ( see Jastrzebski v. N. Shore School Dist., 223 A.D.2d 677, affd 88 N.Y.2d 946).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.