Opinion
April 18, 2000.
Order, Supreme Court, New York County (Diane Lebedeff, J.), entered September 3, 1999, which, to the extent appealed from, denied defendants-appellants' cross motion for summary judgment dismissing the complaint as against them, unanimously modified, on the law, to grant the motion to the extent awarding defendants-appellants summary judgment dismissing plaintiff's Labor Law § 240 LAB.(1) claim, and otherwise affirmed, without costs.
Steven B. Dorfman, for plaintiff-respondent.
Carol R. Finnochio, for defendants-appellants.
WILLIAMS, J.P., ELLERIN, LERNER, ANDRIAS, FRIEDMAN, JJ.
The motion court erred in denying defendants-appellants' summary judgment dismissing plaintiff's Labor Law § 240 LAB.(1) claim because plaintiff's fall was not, under the circumstances of its occurrence, attributable to the sort of elevation-related risk against which Labor Law § 240(1) was intended to afford protection (see, Galloway v. Tenth City Assocs., 228 A.D.2d 254, 255). The motion court, however, properly denied defendants-appellants' cross motion for summary judgment insofar as it sought dismissal of plaintiff's Labor Law § 241(6) claim. Contrary to appellants' arguments in support of dismissing that claim, plaintiff was lawfully frequenting the premises in question at the time of his accident (see, 12 NYCRR § 23-1.4[b][39]; Mordkofsky v. V.C.V. Dev. Corp., 76 N.Y.2d 573, 576-577), and plaintiff's work cleaning office window setbacks may constitute "construction" within the meaning of Labor Law § 241 Lab.(6) (see, 12 NYCRR § 23-1.4[b][13]). Finally, in view of factual questions as to whether defendants-appellants had notice of the condition that allegedly caused plaintiff's harm, the motion court properly denied defendants-appellants summary judgment dismissing plaintiff's common-law negligence claim.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.