Aviles v. Crystal Management, Inc.

Order, Supreme Court, Bronx County (Stanley Green, J.), entered May 14, 1997, which granted defendants’ motion for summary judgment dismissing the complaint, affirmed, without costs. The motion court properly held that the residential portion of the building from which plaintiffs decedent, a window washer, fell, did not constitute a “mercantile establishment” within the meaning of Labor Law § 2 (11), as that law existed in 1922 when the subject premises underwent renovation. Accordingly, the rules then applicable to mercantile establishments, among them rule 5 of the New York Industrial Code of 1920, requiring the provision of safety devices for the protection of window cleaners, did not affect the premises in question much less give rise to the continuing proprietary obligation upon which plaintiff would premise his recovery (see, Administrative Code of City of NY §§ 27-127, 27-128). Nor do we reach plaintiffs argument, raised for the first time on appeal, that liability in this case could be properly premised exclusively upon defendants’ breach of their general duty of care pursuant to Multiple Dwelling Law § 78 (1) to maintain the pre-existing window anchors in good repair. Even were we to reach it and assuming arguendo such a breach, plaintiff, in order to recover, would still have had to plead and prove all of the elements of common-law negligence, including, of course, that the asserted breach caused decedent’s injury (see, Juarez v Wavecrest Mgt. Team, 88 NY2d 628, 644; compare, Shkoditch v One Hundred & Fifty William St. Corp., 17 AD2d 168, 169, affd 16 NY2d 609, with Pollard v Trivia Bldg. Corp., 291 NY 19, 22-23). Here, however, the record shows that decedent, an experienced window cleaner equipped with a safety belt, deliberately unhooked his safety belt and attempted to work without any support or safety equipment while standing on a four-inch ledge three stories above the. ground. Under these circumstances, the IAS Court correctly determined that decedent’s own unforeseeable conduct was the superseding cause of his injury (see, Wright v New York City Tr. Auth., 221 AD2d 431, lv denied 88 NY2d 806; Lionarons v General Elec. Co., 215 AD2d 851, affd 86 NY2d 832). “[A]lthough virtually every untoward consequence can theoretically be foreseen * * * the law draws a line between remote possibilities and those that are reasonably foreseeable” (Di Ponzio v Riordan, 89 NY2d 578, 583). The dissent’s conclusion, that it is foreseeable that the only alternative for a residential tenant unwilling to live with immovable, dirty windows is to hire somebody to stand outside on the sill to clean them, 609 stretches the envelope of foreseeability beyond reason. That it was found to be arguably foreseeable that a tenant would go out on a fire escape to clean the windows of her apartment (see, Kellman v 45 Tiemann Assocs., 87 NY2d 871) does not reasonably lead to the dissent’s conclusion that it was foreseeable that decedent, contrary to the sign posted in the building’s lobby prohibiting “the cleaning of windows from the outside by tenants or their employees”, would climb out the third floor apartment’s living room window and, detaching his safety belt, attempt to clean the center window by standing on the narrow window sill while holding onto the window frame with one hand. Concur — Nardelli, J. P., Tom, Mazzarelli and Andrias, JJ.