For some time before it was amended in 1970, Labor Law § 202 required that owners, lessees and others responsible for public buildings install and maintain anchors on all windows[1] . This mandate was removed in 1970 and replaced by language that referred exclusively to the requirements of the Board of Standards and Appeals (L 1970, ch. 822)[2] . Thus, whereas the absence or inadequacy of anchors may in the past have constituted a direct violation of a specific requirement contained in the statute, after 1970 any particular safety standard required reference to the Industrial Code.

We have held that a violation of a regulation or ordinance is only some evidence of negligence (see, Schumer v Caplin, 241 NY 346, 551 [1925]; Teller v Prospect Heights Hosp., 280 NY 456, 460 [1939]; see also, Elliot v City of New York, , 95 NY2d 730 [2001]). As we noted in Long, the rule imposing strict liability only when there has been a violation of a statute is "reinforced by the principle, long and firmly established in New York, that the violation of a rule of an administrative agency or of an ordinance of a local government, lacking the force and effect of a substantive legislative enactment, is merely some evidence which the jury may consider on the question of defendant's negligence" (55 2 at 160 [citations and internal quotations omitted]). Thus our cases determining whether a particular rule violation results in a finding of negligence per se or is merely some evidence of negligence are also relevant to determining when such violations result in strict liability versus comparative negligence.

In Schumer v Caplin (241 NY 346, 351 [1925]), a case that predated Labor Law § 202, plaintiff window cleaner sought to hold defendant property owner liable for the absence of anchors as required by the Industrial Code. We observed that the "violation of a statute under certain circumstances may of itself establish negligence. Not so, however, with a rule or ordinance." Likewise, in Teller v Prospect Heights Hosp. (280 NY 456 [1939]), a case involving a version of Labor Law § 202 quite similar to the current statute,[3] plaintiff window cleaner sought to establish defendant's negligence through an alleged violation of the statute. We rejected the argument, holding that the absence of anchors violated the requirements of the Industrial Code, to which the statute referred, not the statute itself which contained no mention of anchors.

"The statute does not in terms provide that anchors shall be attached to the windows of the building nor does it provide any particular device or contrivance that shall be provided to make it safe for the window washer to clean the window from the outside. We are required to look to the Industrial Code * * * to learn what rules of the Industrial Board are applicable, what means have been required by the rules of the Industrial Board to be furnished and what devices have been or may be approved for the safety of the person cleaning windows.

"* * * Violation of a rule of the Industrial Board, however, constitutes merely some evidence which the jury may consider on the question of defendant's negligence, along with other evidence in the case which bears on that subject" (Teller, 280 NY at 459-461 [citations omitted]).

That distinction is material. As we explained in Schumer:

"The Constitution of the State commits to the Legislature alone the power to enact a statute. It can give to or confer upon a commission, officer, board or municipality the power to make rules and ordinances governing the administration of their respective affairs. * * * Under [Labor Law] sections 52-a and 52-b, any rule adopted by the Commission may be suspended, modified or varied, depending upon conditions. This cannot be done with a statute. A constitutional statute, once passed, cannot be changed or varied according to the whim or caprice of any officer, board or individual. It remains fixed until repealed or amended by the Legislature" (Schumer, 241 NY at 351).

Thus, under the prior, 1942, version of Labor Law § 202, strict liability could result from the absence or inadequacy of anchors because that was an explicit requirement of the statute. In addition, to the extent that the 1937 version of section 202 required that approved safety devices be supplied and maintained, and that no window cleaning be done unless means were provided to do such work safely, proof that no safety devices at all were provided could form the basis for strict liability (as well as a finding of negligence per se). That is so because -- unlike the current version of the statute -- the absence of any safety devices was a violation of the statute itself (see, Teller, 280 NY at 460; Pollard v Trivia Bldg. Corp., 291 NY 19 [1943]).

Contrary to plaintiff's assertion, Koenig v Patrick Constr. Corp. (298 NY 313, 318 [1948]) did not hold that Labor Law § 202 was a strict liability statute.[4] There, a violation of the statute was established by the total absence of devices, not the absence or inadequacy of a device described only in the Industrial Code.

Thus, we agree with the Appellate Division that Labor Law § 202 is a comparative negligence, not a strict liability, statute. This cause of action having been properly tried to conclusion under principles of comparative negligence at the second trial need not be tried again.

Accordingly, the judgment appealed from and orders of the Appellate Division brought up for review should be modified, without costs, by reinstating the Labor Law § 240(1) cause of action only and remitting to Supreme Court for further proceedings as to that cause of action and, as so modified, affirmed.