Balio, J. (dissenting in part and affirming in part). I agree with the majority that the railroad car constituted a "structure” within the meaning of Labor Law § 240 (1) and that the subject accident is encompassed within this Department’s falling worker or objects test. I cannot agree, however, with the majority’s conclusion that defendants failed to raise a triable issue of fact regarding the recalcitrant worker defense. Accordingly, I respectfully dissent.
Defendants submitted proof that two scaffolds, not one, were available in the sandhouse; that the employee handbook distributed to each employee unequivocally stated that ladders were not to be used for sandblasting; that plaintiff was instructed during his training never to use a ladder for sandblasting; that prior to the subject accident, plaintiff was observed using the ladder for sandblasting on more than one occasion and was told never to use the ladder for such purpose because it was unsafe; and that plaintiff attended a safety meeting at which employees were directed not to use a ladder for sandblasting. There is no evidence that the available scaffolding was unsafe. Indeed, plaintiff admits that he knew the ladder was unsafe and that the scaffolding was definitely safer because it was more stable. According to his foremen, the day after the accident plaintiff admitted that he knew he was not to use the ladder for blasting but that he chose to use the ladder because he could get the job done faster. Defendants presented sufficient material in evidentiary form to raise factual issues in support of the recalcitrant worker defense (see, Lickers v State of New York, 118 AD2d 331, 334; Smith v Hooker Chems. & Plastics Corp., 89 AD2d 361, 365, appeal dismissed 58 NY2d 824). The record fails to reveal that, as a matter of law, adequate safety devices were not properly furnished, placed and in operating condition to give proper protection to plaintiff pursuant to Labor Law § 240 (1), and Supreme Court properly denied the motion and cross motions for summary judgment. Thus, I would affirm. (Appeal from Order of Supreme Court, Erie County, Mintz, J. — Sum*993mary Judgment.) Present — Denman, P. J., Boomer, Green, Balio and Doerr, JJ.