
    Gary Fulton, Appellant, v Walton Street Associates et al., Respondents. Burns Electric, Third-Party Plaintiff-Respondent, v Blais Construction, Inc., et al., Third-Party Defendants-Respondents.
    (Appeal No. 1.)
    [609 NYS2d 881]
   Order insofar as appealed from unanimously reversed on the law without costs and motion granted. Memorandum: Supreme Court erred in denying the motion of plaintiff for partial summary judgment on the issue of liability under Labor Law § 240 (1). Plaintiff established his initial entitlement to judgment in his favor as a matter of law by the submission of proof in evidentiary form that defendants violated the statute and that the violation was a proximate cause of his injury (see, Armstrong v Sherrill-Kenwood Water Disk, 135 AD2d 1081). Defendants thereafter failed to offer evidentiary proof in admissible form demonstrating that there are factual issues that require a trial (see, Zuckerman v City of New York, 49 NY2d 557, 562). Defendants’ reliance on Smith v Hooker Chems. & Plastics Corp. (89 AD2d 361, 365, appeal dismissed 58 NY2d 824) is misplaced because there has been no showing that plaintiff refused to use the safety devices that were provided by the owner or employer (see, Gordon v Eastern Ry. Supply, 82 NY2d 555; Stolt v General Foods Corp., 81 NY2d 918, 920; Hagins v State of New York, 81 NY2d 921, 922-923). (Appeal from Order of Supreme Court, Onondaga County, Pooler, J. — Summary Judgment.) Present — Pine, J. P., Fallon, Doerr, Davis and Boehm, JJ.  