Alzate v. Trustees of the Masonic Hall Asylum Fund

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 plaintiffs claims under Labor Law § 240 (1) and § 202 and granted plaintiffs cross motion for summary judgment on the claim under Labor Law § 240 (1), unanimously affirmed, without costs. Summary judgment as to liability was properly granted with respect to plaintiffs Labor Law § 240 (1) claim inasmuch as plaintiffs 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 Assoc., 294 AD2d 552 [2002], lv denied 98 NY2d 613 [2002]; Stein v Yonkers Contr., 244 AD2d 474 [1997]; DiMuro v Town of Babylon, 210 AD2d 373 [1994]). While, as defendant points out, comparative negligence is relevant in assigning liability under Labor Law § 202 (see Bauer v Female Academy of Sacred Heart, 97 NY2d 445, 452 [2002]), summary judgment dismissing plaintiffs Labor Law § 202 claim would not have been appropriate since the evidence raises a question of fact whether, as defendant contends, error on plaintiffs part was a substantial cause of the accident. Concur — Buckley, P.J., Tom, Rosenberger, Lerner and Marlow, JJ.