
    Glenn Scorza et al., Respondents, v CBE, Inc., Appellant. (And a Third-Party Action.)
    [647 NYS2d 278]
   In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Kings County (Vaccaro, J.), dated July 28, 1995, which granted the plaintiffs’ motion for partial summary judgment as to liability for the causes of action pursuant to Labor Law § 240 (1), (3).

Ordered that the order is affirmed, with costs.

The plaintiff Glenn Scorza was injured when he fell approximately eight feet from a scaffold, when the plank he was standing on broke. The Supreme Court granted the plaintiffs’ motion for partial summary judgment as to liability on the causes of action pursuant to Labor Law § 240 (1), (3) and we now affirm. Evidence by the defendant that Scorza placed a rotten plank on the scaffold, when he was told to use a safe plank, does not create a question of fact as to whether he was a recalcitrant worker (see, Stolt v General Foods Corp., 81 NY2d 918 [An instruction by an employer or owner to avoid using unsafe equipment does not create an issue of fact sufficient to support a recalcitrant worker defense]; see also, Singh v Barrett, 192 AD2d 378).

We find no merit to the appellant’s remaining contention. Rosenblatt, J. P., Ritter, Copertino and Santucci, JJ., concur.  