Defendant Anne Hack, a proprietary tenant and shareholder in defendant Christopher Street Owners Corp., a residential cooperative, hired plaintiff to clean her apartment windows. While cleaning the outside surface of a window, plaintiff slipped off the exterior sill and fell three stories to the courtyard.
On a previous appeal from the disposition of opposing summary judgment motions, this Court modified an order dismissing plaintiff's cause of action pursuant to Labor Law § 240(1) as against defendant cooperative and its managing agent to dismiss the complaint in its entirety ( 211 A.D.2d 441); the Court of Appeals affirmed, noting the parties' failure to address Labor Law § 202 in their briefs ( 87 N.Y.2d 938, 939). A subsequent motion to resettle this Court's order so as to limit dismissal to the cause of action based on Labor Law § 240(1) was denied. Plaintiff then commenced a second action, which was dismissed on the ground of res judicata, this Court affirming ( 256 A.D.2d 78, lv denied 93 N.Y.2d 804).
While the original complaint sought recovery pursuant to Labor Law § 202 and § 240(1), it stated that "defendants are absolutely liable" for plaintiff's injuries. On his motion for summary judgment, plaintiff quoted a prior order, in which Supreme Court remarked that this action was pleaded "as a violation of Labor Law § 240" because plaintiff "explicitly stated he has no negligence claim." Thus, upon finding plaintiff's Labor Law § 240(1) claim to be unavailing as against any party, this Court dismissed the complaint ( 211 A.D.2d 441).
Labor Law § 202 requires the application of comparative negligence principles because statutory liability is predicated on a violation of the Industrial Code ( see Bauer v. Female Academy of the Sacred Heart, 97 N.Y.2d 445, 452-453), which constitutes only "some evidence of negligence" ( Elliott v. City of New York, 95 N.Y.2d 730, 734-735). Thus, from the outset, the § 202 claim was inconsistent with plaintiff's theory of recovery premised upon absolute liability, and plaintiff's failure to raise the issue before the Court of Appeals ( 87 N.Y.2d 938, at 939) merely confirmed his intention to abandon this basis of liability.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.