Milonas, J. P., and Ellerin, J., dissent in a memorandum by Ellerin, J., as follows: Under Labor Law § 240 (1) contractors and owners are liable for any injuries proximately caused by a breach of the statutory duty to provide proper safety devices for work being performed at heights. (See, Yaeger v New York Tel. Co., 148 AD2d 308, 312.) In this case, plaintiff’s evidence submitted on his motion for summary judgment, which consisted primarily of his deposition testimony, clearly established that he was working on a forklift 15 to 18 feet above the ground, when the forklift toppled over and he fell and was thereby injured. Since he also testified that there were no *735safety devices in use, he made a prima facie showing that he was entitled to relief under section 240 (1).
Defendant presented absolutely no evidence refuting this testimony. Contrary to the majority, I find that under such circumstances summary judgment must be granted to plaintiff. The mere fact that plaintiff’s account of the accident in his complaint and bills of particulars was not as complete as that in his deposition testimony is irrelevant. Moreover, even in a situation where the allegations in a complaint significantly differ from testimony given, absent prejudice, the complaint may be amended at any time to conform to the proof (CPLR 3025). The only conceivable prejudice in this case is that the complaint itself did not state that plaintiff was actually on the forklift when the accident occurred, thereby leaving unclear that the Labor Law was applicable. However, this omission was soon rectified in plaintiff’s bill of particulars, dated January 25, 1988, and defendants can therefore not claim that they were deprived of notice of this significant fact.
Moreover, in this case the so-called different versions are not even inconsistent regarding the salient facts, i.e., the position of plaintiff on the forklift at approximately the second story level and his fall to the ground, but merely less complete and can easily be harmonized. There is absolutely no inference that plaintiffs have in any way whatsoever prevaricated as to the facts. The statements made by, and sworn to, by plaintiff himself are absolutely consistent, and the majority’s characterization of them as "inconsistent versions” is perplexing.
I would also find that defendant has had more than ample opportunity to conduct discovery and obtain evidence in its defense, if such evidence exists, since the commencement of this action was over two years before plaintiffs made their motion for summary judgment and there is no reason to deny plaintiffs’ motion pending further discovery.