Opinion
February 10, 1997.
In a claim to recover damages for wrongful death and conscious pain and suffering, the State of New York appeals, as limited by its brief, from (1) so much of an order of the Court of Claims (Blinder, J.), dated April 13, 1995, as (a) granted the claimant's motion for partial summary judgment on the issue of liability under Labor Law § 240 (1), and (b) denied its cross motion to dismiss the wrongful death cause of action, and (2) so much of an order of the same court, dated December 28, 1995, as, upon renewal, adhered to the prior determination.
Before: Mangano, P.J., Rosenblatt, Copertino and Krausman, JJ.
Ordered that the appeal from the order dated April 13, 1995, is dismissed, without costs or disbursements, as that order was superseded by the order dated December 28, 1995, made upon renewal; and it is further,
Ordered that the order dated December 28, 1995, is modified, on the law, by deleting the provision thereof which granted the claimant's motion, and substituting therefor a provision denying the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
The Court of Claims erred in granting the claimant's motion for partial summary judgment on the issue of liability under Labor Law § 240 (1). On the instant record, we may not conclude as a matter of law that Labor Law § 240 (1) was violated and that the violation was a proximate cause of the accident ( see, Bland v Manocherian, 66 NY2d 452; Tzambazis v Argo Mgt. Co., 230 AD2d 843; Skalko v Marshall's, Inc., 229 AD2d 569; Zeitner v Herbmax Sharon Assocs., 194 AD2d 414). Issues of fact exist as to whether the decedent was provided with "proper protection" under the statute (Labor Law § 240; see, Barbuzano v Rem Gen. Constr., 202 AD2d 462; Kalofonos v State of New York, 104 AD2d 75).
The court correctly denied the State's cross motion to dismiss the claimant's wrongful death cause of action ( see, CPLR 3212 [f]).
The State's remaining contentions are academic.