MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is affirmed without costs.
Memorandum:
Supreme Court properly granted plaintiff's cross motion for partial summary judgment pursuant to Labor Law § 240 (1). Plaintiff, an employee of third- party defendant, Keith Ramsey Drywall Services, Inc. (Ramsey), was installing drywall in a room with a cathedral ceiling in a home owned by defendant-third-party plaintiff, Fischione Construction Co., Inc. (Fischione). He was injured when he fell to the floor from atop two stacked drywall "walk-ups" that "fell out" from beneath him. (Walk-ups are metal saddle horse benches with adjustable legs.) Fischione had a nondelegable duty to plaintiff to "furnish or erect * * * scaffolding * * * ladders * * * and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed" (Labor Law § 240). Plaintiff established his entitlement to judgment on liability under Labor Law § 240 (1) as a matter of law by showing that the walk-ups failed to perform their function of supporting him ( see, Smith v. Pergament Enters. of S.I., 271 A.D.2d 870, 871-872), and it cannot be said that the failure of the walk-ups to give proper protection was not a proximate cause of plaintiff's injuries ( cf., Weininger v. Hagedorn Co., 91 N.Y.2d 958, 960, rearg denied 92 N.Y.2d 875). Although Fischione presented evidence that plaintiff had been told not to use the stacked walk-ups, the court properly determined that plaintiff was not a recalcitrant worker. That defense does not apply where, as here, plaintiff allegedly was "instructed to avoid an unsafe practice" ( Akins v. Central N. Y. Regional Mkt. Auth., 275 A.D.2d 911, 912; see, Salotti v. Wellco, 273 A.D.2d 862).
Finally, we conclude that the court properly granted the motion of Fischione seeking summary judgment on its claim for common-law indemnification against Ramsey. Fischione established as a matter of law that it exercised only general supervisory authority over the worksite ( see, Niethe v. Palombo, 283 A.D.2d 967, 968; Colyer v. K Mart Corp., 273 A.D.2d 809, 810).
All concur except Burns, J., who dissents in part and votes to modify in accordance with the following Memorandum:
I respectfully dissent in part. In my view, Supreme Court erred in granting plaintiff's cross motion for partial summary judgment on liability pursuant to Labor Law § 240 (1). Even assuming, arguendo, that plaintiff met his initial burden on the cross motion, I conclude that defendant and third- party defendant, Keith Ramsey Drywall Services (Ramsey), raised an issue of fact whether the actions of plaintiff were the sole proximate cause of his injuries ( see, Weininger v. Hagedorn Co., 91 N.Y.2d 958, 960, rearg denied 92 N.Y.2d 875; see also, Sopha v. Combustion Eng'g, 261 A.D.2d 911, 911-912). According to Ramsey's foreman, he never instructed or advised plaintiff to stand on the walk-ups and in fact specifically instructed plaintiff not to use stacked walk-ups as a work platform. In addition, it is uncontested that, at the time of plaintiff's accident, there was a scaffold, a step ladder and an extension ladder present in the room where plaintiff was working. I therefore would modify the order by denying plaintiff's cross motion.