BROWN v. CHRISTOPHER STREET OWNERS CORP (2003)

Order, Supreme Court, New York County (Harold Tompkins, J.), entered April 2, 2002, which denied plaintiff's motion to reinstate a claim under Labor Law § 202, unanimously affirmed, without costs.

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, 620 N.Y.S.2d 374);  the Court of Appeals affirmed, noting the parties' failure to address Labor Law § 202 in their briefs (87 N.Y.2d 938, 939, 641 N.Y.S.2d 221, 663 N.E.2d 1251).   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, 681 N.Y.S.2d 255, lv. denied 93 N.Y.2d 804, 689 N.Y.S.2d 16, 711 N.E.2d 201).

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, 620 N.Y.S.2d 374).

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, 741 N.Y.S.2d 491, 767 N.E.2d 1136), which constitutes only “some evidence of negligence” (Elliott v. City of New York, 95 N.Y.2d 730, 734-735, 724 N.Y.S.2d 397, 747 N.E.2d 760).   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, 641 N.Y.S.2d 221, 663 N.E.2d 1251) merely confirmed his intention to abandon this basis of liability.