        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1389
CA 11-01232
PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND MARTOCHE, JJ.


KENNETH J. HECKER, CLAIMANT-APPELLANT,

                    V                               MEMORANDUM AND ORDER

STATE OF NEW YORK, DEFENDANT-RESPONDENT.
(CLAIM NO. 116642.)


MODICA & ASSOCIATES, ATTORNEYS, PLLC, ROCHESTER (JEFFREY A. VAISEY OF
COUNSEL), FOR CLAIMANT-APPELLANT.

KENNEY SHELTON LIPTAK NOWAK, LLP, ROCHESTER (RICHARD C. BRISTER OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Court of   Claims (Renee Forgensi
Minarik, J.), entered October 21, 2010 in   a personal injury action.
The order granted the motion of defendant   for summary judgment,
dismissed the claim and denied claimant’s   cross motion for partial
summary judgment.

     It is hereby ORDERED that the order so appealed from is affirmed
on the law without costs.

     Memorandum: Claimant commenced this action seeking damages for
injuries he sustained based upon, inter alia, defendant’s alleged
violation of Labor Law § 241 (6). Claimant’s employer had contracted
with defendant to perform rehabilitation work on an historic lift
bridge, but several months after the work was completed it became
necessary to replace defective components in the lift mechanism 30
feet below the ground. Claimant was shoveling snow from the diamond
plate decking at the corner of the bridge in order to access the pit
door when he slipped and fell onto his back. The Court of Claims
granted defendant’s motion for summary judgment dismissing the claim,
which alleged various violations of the Labor Law and common-law
negligence, but the sole issue before us on appeal is whether the
court properly granted the motion insofar as defendant sought
dismissal of the Labor Law § 241 (6) claim to the extent that it is
premised on the violation of 12 NYCRR 23-1.7 (d). That regulation
requires that an employer “shall not suffer or permit any employee to
use a floor, passageway, [or] walkway . . . which is in a slippery
condition. Ice, snow, [and] water. . . which may cause slippery
footing shall be removed, sanded or covered to provide safe footing.”
We agree with claimant that the court erred in relying upon Gaisor v
Gregory Madison Ave., LLC (13 AD3d 58) in determining that snow
removal was an integral part of claimant’s work and thus that he could
                                 -2-                          1389
                                                         CA 11-01232

not allege a violation of Labor Law § 241 (6) based on that regulation
in connection with injuries he sustained while removing the snow.
Instead, we conclude that, “[e]ven if snow removal fell within the
scope of [claimant’s] responsibilities, such would only be relevant in
determining comparative fault, and would not require a grant of
summary judgment in defendant[’s] favor” (Booth v Seven World Trade
Co., L.P., 82 AD3d 499, 502).

     We nevertheless affirm the order on other grounds. Although the
parties do not specifically address, on appeal, the issue whether 12
NYCRR 23-1.7 (d) applies to the facts herein, claimant’s bill of
particulars and cross motion alleged the applicability of the
regulation and claimant appealed from the entire order, including that
part denying his cross motion. Under the circumstances of this case,
we conclude that we may review the applicability of the regulation to
the facts herein and, upon such review, we conclude that the record
establishes that it does not apply. Although claimant had shoveled
sidewalks to reach the corners of the bridge where he would access the
subterranean work site, and the pit door through which he would access
the work site was located in a sidewalk, we conclude that claimant was
not using the area in which he fell as a floor, passageway or walkway
at the time of his fall (see Hertel v Hueber-Breuer Constr. Co., 48
AD3d 1259; Bale v Pyron Corp., 256 AD2d 1128; cf. Sullivan v RGS
Energy Group, Inc., 78 AD3d 1503).

     All concur except CENTRA and CARNI, JJ., who dissent and vote to
modify in accordance with the following Memorandum: We respectfully
dissent on the sole issue before us on this appeal and thus would
modify the order by denying the motion in part and reinstating the
Labor Law § 241 (6) claim to the extent it is premised on the
violation of 12 NYCRR 23-1.7 (d). We agree with the majority that the
Court of Claims erred in dismissing that claim by relying on Gaisor v
Gregory Madison Ave., LLC (13 AD3d 58), inasmuch as any argument by
defendant that snow removal was an integral part of claimant’s work is
relevant only on the issue of comparative fault (see Booth v Seven
World Trade Co., L.P., 82 AD3d 499, 502). Nevertheless, we disagree
with the majority that we should affirm on other grounds, i.e., that
the regulation does not apply to the facts here. As the majority
recognizes, defendant did not raise that argument before the court or
before us. In our view, it is “fundamentally unfair to determine this
issue sua sponte” (Woods v Design Ctr., LLC, 42 AD3d 876, 878). We
should not be “in the business of blindsighting litigants, who expect
us to decide their appeals on rationales advanced by the parties, not
arguments their adversaries never made” (Misicki v Caradonna, 12 NY3d
511, 519).

     In any event, to the extent that this issue can be resolved on
the facts in the record before us, we disagree with the majority that
12 NYCRR 23-1.7 (d) does not apply. That regulation requires that an
employer “shall not suffer or permit any employee to use a floor,
passageway, [or] walkway . . . which is in a slippery condition. Ice,
snow, [and] water . . . which may cause slippery footing shall be
removed, sanded or covered to provide safe footing.” Here, the record
establishes that claimant’s employer was required to replace defective
                                 -3-                          1389
                                                         CA 11-01232

components in a lift mechanism 30 feet below the ground. Employees
would gain access to the underground work site by going through a “pit
door” located on the sidewalk of the bridge. At the time of the
accident, claimant was clearing snow off of the pit door and the
sidewalk when he slipped on the pit door and fell onto his back.
Inasmuch as the pit door was located on the sidewalk and was the only
way to access the underground work site, we conclude that, at the time
of his accident, claimant was using a passageway or walkway within the
meaning of the regulation (see Fassett v Wegmans Food Mkts., Inc., 66
AD3d 1274, 1277-1278; Whalen v City of New York, 270 AD2d 340, 341-
342).




Entered:   February 10, 2012                    Frances E. Cafarell
                                                Clerk of the Court
