The opinion
Burns, J.
(dissenting in part). I respectfully dissent in part. In my view, Supreme Court erred in granting plaintiffs cross motion for partial summary judgment on liability pursuant to Labor Law § 240 (1). Even assuming, arguendo, that plaintiff met his initial burden on the cross motion, I conclude that defendant and third-party defendant, Keith Ramsey Drywall Services (Ramsey), raised an issue of fact whether the actions of plaintiff were the sole proximate cause of his injuries (see, Weininger v Hagedorn & Co., 91 NY2d 958, 960 , rearg denied 92 NY2d 875; see also, Sopha v Combustion Eng’g, 261 AD2d 911, 911-912 ). According to Ramsey’s foreman, he never instmcted or advised plaintiff to stand on the walk-ups and in fact specifically instmcted plaintiff not to use stacked walk-ups as a work platform. In addition, it is uncontested that, at the time of plaintiffs accident, there was a scaffold, a step ladder *761 and an extension ladder present in the room where plaintiff was working. I therefore would modify the order by denying plaintiff’s cross motion. Present — Pigott, Jr., P.J., Pine, Wisner, Burns and Lawton, JJ.