Opinion
493
March 13, 2003.
Order, Supreme Court, New York County (Marilyn Shafer, J.), entered on or about March 8, 2002, which, inter alia, denied defendant's motion for summary judgment dismissing plaintiff's claims under Labor Law § 240(1) and § 202 and granted plaintiff's cross motion for summary judgment on the claim under Labor Law § 240(1), unanimously affirmed, without costs.
Robin Mary Heaney, for plaintiff-respondent.
David DeMaggio, for defendant-appellant.
Before: Buckley, P.J., Tom, Rosenberger, Lerner, Marlow, JJ.
Summary judgment as to liability was properly granted with respect to plaintiff's Labor Law § 240(1) claim inasmuch as plaintiff's fall while preparing to wash external windows on the 19th floor of defendant's building was occasioned, at least in substantial part, by the failure of an improperly anchored safety belt to provide plaintiff with adequate protection (see Podbielski v. KMO-361 Realty Assocs., 294 A.D.2d 552, lv denied 98 N.Y.2d 613; Stein v. Yonkers Contr. Co., 244 A.D.2d 474; DiMuro v. Town of Babylon, 210 A.D.2d 373).
While, as defendant points out, comparative negligence is relevant in assigning liability under Labor Law § 202 (see Bauer v. Female Academy of the Sacred Heart, 97 N.Y.2d 445, 452), summary judgment dismissing plaintiff's Labor Law § 202 claim would not have been appropriate since the evidence raises a question of fact whether, as defendant contends, error on plaintiff's part was a substantial cause of the accident.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.