These prerequisites do not exist if adequate safety devices are available at the job site, but the worker either does not use or misuses them" ( Robinson v East Med. Ctr., LP, 6 NY3d 550, 554 [internal quotation marks, citations and ellipsis omitted]). As defendant submitted no evidence that adequate safety devices were available to plaintiff or that plaintiff was directed to use such devices, it failed to make a prima facie showing that plaintiffs actions were the sole proximate cause of his injuries ( see Ferluckaj v Goldman Sachs Co., 50 AD3d 359, 362; Balbuena v New York Stock Exch., Inc., 49 AD3d 374, 375-376; see also De Jara v 44-14 Newtown Rd. Apt. Corp., 307 AD2d 948, 950; cf. Cahill v Triborough Bridge Tunnel Auth., 4 NY3d 35, 39-40). Defendant's argument that it is entitled to summary judgment dismissing plaintiffs cause of action under Labor Law § 240 (1) on the ground that plaintiff was not engaged in an activity protected by that statute was not raised before Supreme Court and we decline to consider it.

Accordingly, plaintiff failed to rebut Goldman's prima facie showing that it did not hire her employer to perform window cleaning work, and her Labor Law § 240 (1) claim against said defendant was properly dismissed. Reargument granted, and upon reargument, the decision and order of this Court entered April 10, 2008 ( 50 AD3d 359) recalled and vacated and a new decision and order substituted therefor. Leave to appeal to the Court of Appeals granted, as indicated.