(dissenting.) As the majority noted, the Court of Appeals has expressly declined to address whether Labor Law § 202 provides the exclusive remedy in cases involving the cleaning of windows (see, Brown v Christopher St. Owners Corp., 87 NY2d 938, 939; see also, Terry v Young Men’s Hebrew Assn., 78 NY2d 978, 979). We believe that the factual circumstances presented by a particular case might warrant the application of the protections afforded by Labor Law § 240 (1) where the activity engaged in may not constitute “cleaning” within the meaning of Labor Law § 202 (see, Vernum v Zilka, 241 AD2d 885, 886). We would, therefore, affirm the determination rendered by Supreme Court which, following the First and Fourth Departments, concluded that Labor Law § 202 would not preclude a cause of action under Labor Law § 240 (1) (see, e.g., Cruz v Bridge Harbor Hgts. Assocs., 249 AD2d 44, 45; Ferrari v Niasher Realty, 175 AD2d 591, 592; Terry v Young Men’s Hebrew Assn., 168 AD2d 399, 400, affd on other grounds 78 NY2d 978).
Mercure and Carpinello, JJ., concur with Crew III, J.; Peters, J., and Mikoll, J. P., dissent in a separate opinion by Peters, J.
Ordered that the order is modified, on the law, without costs, by reversing so much thereof as denied the motions of defendant and ESS dismissing plaintiffs Labor Law § 240 cause of action and the motion of ESS for summary judgment dismiss*303ing defendant’s claim for contractual indemnification; motions granted to said extent and such claims dismissed; and, as so modified, affirmed.