In this work related personal injury action, plaintiff Esteban Garces, moves pursuant to CPLR Section 3212 for summary judgment on his Labor Law § 240(1) claim.

Plaintiff testified at his examination before trial on March 26, 2008, which was sworn and notarized on October 31, 2008 as follows in pertinent part:

"Q. Can you please tell me, in your own words, exactly what happened to you on August 26, 2005, at Atlantic and Smith?

MR. LANIGAN: Just note my objection.

A. Yes

Mr. Bekker: I am just going to ask counsel, what is your objection?

MR. ASCHER: Over the objection.

MR. LANIGAN: It is over objection. You are asking for a narrative.

A. I was — disassembling the platform where you fill it in — that you fill it in with cement. It was already — it had been already emptied, it had no more cement and you had to disassemble it.

MR. ASCHER: Continue and tell them what happened.

A. And then I was hammering, a screw that has — that ties one panel with another and this one had a nut, the screw had a nut. Since this was a very tight area, I had to hold myself with one hand and I was using the other hand to hammer. I was hammering the nut to loosen the screw.

Q. And then did you fall?

A. I lost my balance and I fell on my back, backwards.

Q. How high up were you standing when you fell?

A. It was about eight feet high.

Q. Did you fall off of something?

A. Yes.

Q. What?

A. I was standing — I was standing on a scaffold that resembles stairs.

MR. ASCHER: Stairs or a ladder?

THE INTERPRETER: The same word is same word for ladder and stairway. I had to clarify which one.

...

Q. When you fell, what happened to the ladder that you had been standing on?

A. It had the shape of a ladder, but it was a fixed structure."

Summary judgment is a drastic remedy that should only be employed when there is no doubt as to the absence of any triable issues of a material fact (Kolivas v Kirchoff, 14 AD3d 493 [2nd Dept. 2005]). "Issue finding, rather than issue determination is the courts function. If there is any doubt about the existence of a triable issue of fact, or a material issue of fact is arguable, summary judgment should be denied." (Celardo v Bell, 222 AD2d

547 [2nd Dept. 1995]).

A plaintiff moving for summary judgment has the initial burden of coming forward with admissible evidence that establishes the absence of a material issue of fact and that the cause of action has no merit. (CPLR 3212[b]; GTF Marketing, Inc. V. Colonial Aluminum, Sales, Inc.,

66 NY2d 965, 968 [1985]). Once the plaintiff has satisfied his obligation, the burden shifts and the defendant in opposing the motion must now demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v. City of New York, 49 NY2d 557, 560, [1980]). "Mere conclusory assertions, devoid of evidentiary facts, are insufficient for this purpose, as is reliance upon surmise, conjecture, or speculation" (Morgan v. New York Telephone, 220 AD.2d 728, 729 [2d Dept 1995]).

Labor Law Section 240(1) provides, in pertinent part, that:

"All contractors and owners.....who contract for

but do not direct or control the work, in the

erection, demolition.....of a building or structure

shall furnish or erect, or cause to be furnished or

erected for the performance of such labor, scaffolding,

hoists, stays, ladders, slings, hangers, blocks, pulleys,

irons, ropes and other devices which shall be so constructed,

placed and operated as to give protection to a person so

employed."

In order to recover on a cause of action pursuant to Labor Law § 240(1), a plaintiff must demonstrate that there was a violation of the statute, and that the violation was a proximate cause of the accident (Robinson v. East Med. Ctr., LP, 6 [*3]NY3d 550, 554 [2006]). Once a violation and proximate cause are established, the liability of the owner and general contractor is absolute; in that the recovery will not be reduced by any contributory negligence on the part of the plaintiff (Bland v. Manocherian, 66 NY2d 452, 459 [1985]).

Where there is no violation or, the violation is not a proximate cause of the accident, there is no liability pursuant to the statute. As the Court of Appeals has explained:

"Under Labor Law § 240 (1) it is conceptually impossible for a statutory violation (which serves as a proximate cause for a plaintiff's injury) to occupy the same ground as a plaintiff's sole proximate cause for the injury. Thus, if a statutory violation is a proximate cause of an injury, the plaintiff cannot be solely to blame for it. Conversely, if the plaintiff is solely to blame for the injury, it necessarily means that there has been no statutory violation."

As a threshold issue, defendants argue that plaintiff's motion relies, in part, on the defendants' unsigned deposition transcripts. However, plaintiff is seeking to use defendant's deposition as an admission, which need not be in deposition form. "An unsigned but certified deposition transcript of a party can be used by the opposing party as an admission in support of a summary judgment motion" (Morchik v Trinity School, 257 AD2d 534, 536 [1st Dept 1999]. Thus, these transcripts are properly before the Court.

On substantive grounds, defendants argue that an issue of fact exists as to whether plaintiff was even at the construction site on the day of his alleged accident. In support of this argument, defendants point to the lack of any documentary evidence of plaintiff's presence. Defendants do not, however, offer any evidence of plaintiff's absence. Thus, plaintiff's deposition testimony that he was injured at the construction site is unrebutted and is confirmed by the non-binding determination of the New York State Worker's Compensation Board.

Defendants also argue that there is an issue of fact as to the height plaintiff fell from. Defendants rely on the medical records that indicate plaintiff was four [*4]and not eight feet above the ground when he fell. In addition to the evidentiary problems with this argument, a four foot elevation is not minuscule; thus, even if this was proven, it would not create a material issue of fact (Haulotte v. Prudential Ins. Co. of America, 266 AD2d 38 [1st Dept 1999]).

Finally, defendants argue that, because there is evidence that safety harnesses were available at the construction site, there is an issue of fact regarding the recalcitrant worker defense. The recalcitrant worker defense "requires a showing that the injured worker refused to use the safety devices that were provided by the owner or employer" (Gordon v Eastern Ry. Supply, 82 NY2d 555, 562-563 [1993], citing Stolt v General Foods Corp., 81 NY2d 918, 920 [1993]). "[A]n owner who has provided safety devices is not liable for failing to "insist that a recalcitrant worker use the devices'" (Cahill v. Triborough Bridge and Tunnel Authority, 4 NY3d 35, 39 [2004], quoting, Smith v Hooker Chems. & Plastics Corp., 89 AD2d 361, 365 [4th Dept.1982]. However, "the mere presence of alleged safety devices somewhere on the job site" is insufficient to raise a triable issue of fact as to the defense (Palacios v. Lake Carmel Fire Dept., Inc., 15 AD3d 461 [2005], quoting, Davis v. Board of Trustees of Hicksville Pub. Lib. of Hicksville Union Free School Dist., 240 AD2d 461, 463 [2d Dept 1997]).

The plaintiff has established his prima facie entitlement to summary judgment as a matter of law on the issue of liability on his cause of action alleging a violation of Labor Law Section 240(1) with evidence that the plaintiff was not provided with any adequate or appropriate safety devices, and that such failure was the proximate cause of his injuries. (Triola v City of New York, 62 AD3d 984 [2d Dept 2009]).

Moreover, where as here, a violation of Labor Law Section 240(1) is a proximate cause of the accident, the plaintiff's conduct of necessity, cannot be deemed the sole proximate cause (id.)

In opposition to the plaintiff's prima facie showing of entitlement to summary judgment as a matter of law, the defendants failed to raise a triable issue of fact.

Based on the foregoing, the plaintiff's motion for summary judgment on his claim pursuant to Labor Law § 240(1) is granted.

This constitutes the Decision and Order of the Court.

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J.S.C.