As noted in "How to Prove a Construction Site Accident Case in New York," New York Labor Law § 240(1), also known as the "scaffold law," requires that owners and contractors provide the workers with safety devices at construction sites, particularly where elevation-related work is involved. In that vein, owners and contractors have been successful in defeating these § 240(1) claims where the workers failed to use proper sized - and available - safety devices, such as a ladder. See, e.g., Robinson v. East Medical Center, LP, 6 N.Y.3d 550, 814 N.Y.S.2d 589.
On the other hand, there are cases like Gallagher v. New York Post, 14 N.Y.3d 83, .... N.Y.S.2d .... where the owner of the site did not succeed in defeating the plaintiff's scaffold law claim. In that case, the plaintiff fell through an uncovered hole in the floor between the first and second floors of the building when his saw blade jammed in the flooring that he was in the middle of cutting.
Interestingly, it was not as if there weren't safety devices at the site; to the contrary, the project manager was specifically informed that safety harnesses were available and that the ironworkers on the site - such as plaintiff - should use them. But there was one problem: there was absolutely no proof that the plaintiff or any of the other workers at the site had ever been told about the availability of these safety devices, let alone to use them. To the contrary, the plaintiff's own supervisor testified that the plaintiff had not been given any safety equipment, nor was there any such protective equipment anywhere near the accident site.
Consequently, unlike that line of cases where the plaintiff's recovery under New York's Labor Laws is barred because his own negligence was the sole proximate cause of the accident (see, e.g., "A Fatal Mistake That Can Ruin Your Construction Site Accident Case") the Court concluded that this "is not such a case" because there was no evidence that plaintiff "knew where to find the safety devices ... or that he was expected to use them."