PLAINTIFF FELL WHEN A TEMPORARY SCAFFOLD HE HAD BUILT COLLAPSED; DEFENDANTS ARGUED PLAINTIFF DID NOT FOLLOW INSTRUCTIONS ON HOW TO PROPERLY BUILD THE SCAFFOLD; THE RECALCITRANT-WORKER DEFENSE DID NOT APPLY BECAUSE PLAINTIFF WAS NEVER PROVIDED WITH AN ADEQUATE SAFETY DEVICE AND PLAINTIFF’S ALLEGED COMPARATIVE NEGLIGENCE WILL NOT DEFEAT A LABOR LAW 240(1) SUMMARY JUDGMENT MOTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s summary judgment motion on the Labor Law 240(1) cause of action should have been granted. Defendant raised the recalcitrant worker defense which the First Department found inapplicable. Plaintiff was standing on a scaffold when it collapsed. Defendant argued plaintiff disregarded instructions on how to construct the scaffold, a comparative-negligence argument which  will not defeat a summary judgment motion:

[Defendants’] 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 … . Defendants’ allegations that plaintiff disregarded instructions on how to properly build the scaffolding, built the scaffolding incorrectly, selected defective wood for its construction, and failed to have the scaffold inspected before its use, are insufficient to establish that plaintiff was a recalcitrant worker … . Indeed, defendants failed to demonstrate whether the scaffolding, if properly constructed, constituted adequate protection under Labor Law § 240(1). Thus, the recalcitrant worker defense “has no application where, as here, no adequate safety devices were provided” … , 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 … . Peralta v Hunter Roberts Constr. Group LLC, 2025 NY Slip Op 05928, First Dept 10-28-25

Practice Point: The recalcitrant-worker defense only applies if plaintiff was provided with an adequate safety device and refuses to use it, not the case here.