The opinion
Ellerin, J.P. and Lerner, J.,
dissent in a memorandum by Ellerin, J.P. as follows: I would affirm on the ground that the fire escape was a “safety device” within the purview of Labor Law § 240 (1) by virtue of the fact that plaintiffs employer directed him to use it to descend from the scaffold (see Acosta v Kent Bentley Apts., 298 AD2d 124, 125 [2002] [since fire escape platforms and ladders were being used “to provide access to different elevation levels for the worker and his materials, the ladder whose fall occasioned plaintiffs injury is properly viewed as a safety device”]). Inasmuch as the fire escape ladder manifestly did not function properly as a device to afford plaintiff safe de *311 scent from his elevated work site, summary judgment was properly granted on his Labor Law § 240 (1) claim (id.).
Defendant argues that the factual distinctions between the instant case and Acosta compel a finding that the fire escape was not a “safety device” within the meaning of the statute. However, whether or not the fire escape had ever before been used by the workers on this job as a means of descent and whether or not another means of descent was available, plaintiff was directed by his employer to dismount the scaffold at the level at which he had been doing masonry pointing and to step onto the fire escape platform and use the fire escape ladder as a means of descending to street level. After he dismounted the scaffold, plaintiff still needed a device for his protection in descending to the street from his elevated work site (Rocovich v Consolidated Edison Co., 78 NY2d 509, 513-514 [1991] [“Some of the enumerated devices (e.g., ‘scaffolding’ and ‘ladders’), . . . are for the use or protection of persons in gaining access to or working at sites where elevation poses a risk”]). The fire escape was that device.
Moreover, to hold a construction worker responsible for choosing the safest way down to street level from an elevated scaffold, particularly after his boss has directed him to use the fire escape, defeats the purpose of the law, which is “to protect workers by placing ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor, instead of on workers, who are scarcely in a position to protect themselves from accident” (Rocovich, supra at 513 [citations and internal quotation marks omitted]).
That plaintiff neither fell nor was struck by an object that was being hoisted or secured as part of the work he was doing does not alter the analysis (see e.g. Acosta, supra [plaintiff injured when hand was trapped in descending fire escape ladder]; Franklin v Dormitory Auth. of State of N.Y., 291 AD2d 854 [2002] [summary judgment properly granted to plaintiff whose leg became entangled in scaffolding after he stepped onto plank that rose in the air]; Lacey v Turner Constr. Co., 275 AD2d 734, 735 [2000] [summary judgment properly granted to plaintiff who, while standing on ladder that lost contact with wall and turned sideways, ruptured disk while managing to turn ladder back against wall]).
Nor does Narducci v Manhasset Bay Assoc. ( 96 NY2d 259 [2001]) compel a different result. In Narducci , the Court of Appeals held that Labor Law § 240 (1) did not cover a plaintiff who was injured when he was struck by a pane of glass that fell *312 from a window frame adjacent to the window against which he was standing on a ladder. The Court found that the risk of falling glass was not the type of risk the statute was intended to address, since the glass itself was not a material being hoisted or a load that required securing for the purposes of the undertaking at the time it fell (Narducci, at 268). The ladder on which the plaintiff was standing could not be deemed “inadequate,” since the plaintiff was not injured as a result of a fall and did not contest that the ladder functioned properly (at 269). In distinction, in the instant case, plaintiff was directed to use the fire escape instead of the scaffold as a means of descending from his elevated work site, placing him squarely within the protection of Labor Law § 240 (1) (see Rocovich, supra), and he was injured as a result of the fact that the fire escape ladder did not function properly.