Heath v. Soloff Construction, Inc.

¶1(concurring). I concur fully in the majority opinion, but write separately only to express the view that the majority opinion effectively overrules Smith v Hooker Chems. & Plastics Corp. (89 AD2d 361) and that such a holding should be explicit, rather than implicit.

¶2In Smith v Hooker Chems. &; Plastics Corp. (supra)we denied plaintiff summary judgment because there was a version of the facts by which plaintiff was injured due to his own choice to go up on a roof without first putting in place a safety line, which would then attach to his safety belt. The express holding in Smithwas that the owner and contractor have no duty to see that a recalcitrant worker uses safety equipment provided. Implicit in that holding, however, was the premise that the employee himself and not the owner had the duty to take a safety line, which was available on the job site, and attach it to the roof.* The majority opinion today clearly expresses the view that it is the owner and general contractor, and not the employee, who have that duty. Under the holding today, the plaintiff in Smithwould be denied recovery only if the safety line had already been in place and the employee had then declined to attach it to his safety belt.

¶3I agree with the view expressed in the majority opinion that the Labor Law imposes upon owners and general contractors the duty of furnishing and placing various devices and that this is a *514nondelegable duty, which cannot be satisfied merely by furnishing somewhere on the job site devices which might have prevented plaintiff’s injuries had they been used.

¶4Denman, Boomer and O’Donnell, JJ., concur with Dillon, P. J.; Doerr, J., concurs in a separate opinion.

¶5Order affirmed, with costs.