| Ferluckaj v Goldman Sachs & Co. |
| 2008 NY Slip Op 03108 [50 AD3d 359] |
| April 10, 2008 |
| Appellate Division, First Department |
| Miliha Ferluckaj, Respondent-Appellant, v Goldman Sachs& Co., Appellant-Respondent, et al., Defendant. Goldman Sachs & Co., Third-PartyPlaintiff-Appellant, v American Building Maintenance Co., Third-PartyDefendant-Respondent. |
—[*1] Michael J. Gaffney, Staten Island, for respondent-appellant. Jeffrey Samel & Partners, New York (David Samel of counsel), for respondent.
Order, Supreme Court, New York County (Rolando T. Acosta, J.), entered March 20, 2007,which, upon reargument, granted the motion of defendant Goldman Sachs (Goldman) forsummary judgment to the extent of dismissing plaintiff's Labor Law § 240 (1) claim asagainst it, and granted third-party defendant American Building Maintenance Co.'s motion todismiss Goldman's third-party claim against it for indemnification, modified, on the law, to denyGoldman summary judgment dismissing plaintiff's Labor Law § 240 (1) claim as against it,and otherwise affirmed, without costs. Order, same court and Justice, entered August 24, 2006, tothe extent not superseded by the March 20, 2007 order, which, to the extent appealed from,denied Goldman summary judgment dismissing the complaint as against it, modified, on the law,to grant Goldman summary judgment only to the extent of dismissing the claims pursuant toLabor Law §§ 200 and 241 (6) as against it, and otherwise affirmed, without costs.
Defendant Goldman leased several floors in the building at 32 Old Slip Road in Manhattan,including the 29th floor. Its lease provided that the building's owner, which is not a party to thisaction, would furnish cleaning services, including window washing. The owner [*2]contracted with plaintiff's employer, third-party defendantAmerican Building Maintenance Co. (ABM), to provide those cleaning services. The agreementbetween the owner and ABM required ABM to clean the exterior and interior of the building'swindows every three months. It further provided for ABM, at the owner's request, to perform theinitial cleaning of all interior windows at no extra charge "[p]rior to tenant occupancy." Fromtime to time, Goldman purchased cleaning services not covered by its lease directly from ABM.The services Goldman states it purchased directly from ABM were pantry maintenance andcarpet care. Goldman maintains that it never purchased any exterior window cleaning (includingcleaning of the interiors of such windows) directly from ABM.
It is unclear from the record when Goldman's lease commenced or when Goldman initiallytook occupancy of the 29th floor. It is undisputed, however, that between January and March2001, defendant Henegan Construction Co. performed a complete build-out of several floorsleased by Goldman in the building. This was pursuant to an agreement with Goldman andincluded the 29th floor. Plaintiff's accident occurred on March 22, 2001. By that date, Heneganhad completed its construction work on the 29th floor, although some minor punch-list work mayhave been outstanding. Indeed, on the morning of the accident, plaintiff noticed some"construction material" and tools on the 29th floor and observed that it was "dusty."
On March 22, 2001, plaintiff was directed to go to the 29th floor to assist in cleaning thewindow interiors. The windows in the offices on the 29th floor rose from a point three feet abovethe floor and extended upward an additional six feet. Plaintiff was equipped with nothing otherthan a hand cloth to clean the windows. She stated in an affidavit submitted in support of hermotion for summary judgment on her Labor Law § 240 (1) claims that she was "cleaningdust off the windows that was from the construction." Plaintiff took instructions related to thewindow cleaning exclusively from her ABM supervisor.
To clean the top of a window in one of the offices, plaintiff climbed on top of a desk adjacentto the windows. As she was moving along the width of the window, she fell off the desk to thefloor, injuring herself. Plaintiff testified at her deposition that she knew at the time of theaccident that there was a step stool with two steps in a supply closet maintained by ABM in thebuilding but that she never asked for it. Plaintiff was not asked at her deposition, nor does therecord otherwise reveal, how high the step stool was. Plaintiff further testified that her supervisorwas aware that the cleaning staff stood on office desks to reach the tops of the windows.
Supreme Court initially denied plaintiff's motion for summary judgment on her Labor Law§ 240 (1) claim and Goldman's cross motion for summary judgment dismissing thecomplaint in its entirety as against Goldman. The court found that the window cleaning couldonly be protected activity under the Labor Law if it was incidental to the construction workperformed by Henegan, but found that an issue of fact existed regarding the nature of the work.Upon ABM's motion for reargument, however, the court dismissed plaintiff's section 240 (1)claim. The court did not revisit the issue of whether Goldman and Henegan were, respectively, anowner and contractor for purposes of Labor Law liability. Rather, the court found that, becauseshe did not avail herself of the step stool, plaintiff was the sole proximate cause of her accident.The court also dismissed Goldman's claim against ABM for indemnification. Goldman hadargued that ABM had a duty to indemnify it in accordance with ABM's agreement with theowner that ABM would indemnify the owner in connection with actions arising out of, inter alia,"any sub-contracted operations."[*3]
We modify Supreme Court's orders to reinstate plaintiff'sclaim against Goldman pursuant to Labor Law § 240 (1) and to dismiss plaintiff's claimsagainst Goldman pursuant to Labor Law §§ 200 and 241 (6). In its initial order, thecourt stated that plaintiff could only recover under Labor Law § 240 (1) upon a showingthat the window cleaning was incidental to construction work. Since that finding, however, theCourt of Appeals has clarified the law, holding that " 'cleaning' is expressly afforded protectionunder section 240 (1) whether or not incidental to any other enumerated activity" (Broggy v Rockefeller Group, Inc., 8NY3d 675, 680 [2007]). Moreover, it was error to dismiss the complaint on the basis thatplaintiff was the sole proximate cause of her accident. On their own motions, defendants did notestablish as a matter of law that the step stool would have been sufficient to permit plaintiff toavoid the accident (see Balbuena v NewYork Stock Exch., Inc., 45 AD3d 279 [2007]).
Indeed, on plaintiff's motion, defendants failed to even raise a triable issue of fact regardingsole proximate cause (see id.). It is "unclear," as the concurrence concedes, whether astep stool would have been provided to plaintiff had she asked for one. This lack of clarity is notthe result of conflicting factual allegations; rather, it is because defendants failed to set forth anyevidence regarding the availability of the step stool. Furthermore, even if it were clear that a stepstool would have been provided had plaintiff requested one, defendants, again, failed to presentany evidence as to whether it would have constituted an adequate safety device.
The statement in the concurrence that an issue of fact exists as to whether plaintiff'sinattentiveness was the sole proximate cause of her accident is similarly unavailing. The soleproximate cause defense does not apply where plaintiff was not provided with an adequate safetydevice as required by the Labor Law (see Blake v Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280,290 [2003]). Here, the desk that plaintiff was working on at the time of her accident did notconstitute an adequate safety device.
Nevertheless, we decline to award summary judgment to either party at this juncture. Aquestion exists as to whether Goldman, as a lessee, is liable here pursuant to Labor Law §240 (1). That provision enumerates only contractors, owners and their agents as persons chargedwith providing protective devices to workers. However, a lessee may have liability as an "owner"under the Labor Law when it had the right or authority to control the work site (see Bart vUniversal Pictures, 277 AD2d 4, 5 [2000]). Goldman argues that it had no authority overplaintiff's window cleaning because the work was being performed strictly pursuant to ABM'sagreement with the owner. The dissent agrees, submitting that the contract between ABM and thebuilding owner is prima facie evidence that Goldman did not request the work. However, thecontract is not dispositive on its face. Accordingly, Goldman did not meet its prima facie burdenmerely by placing it in the record.
For the contract to have had any probative value for purposes of summary judgment,Goldman would have had to establish that the work that plaintiff was performing at the time ofher accident was pursuant to one of two provisions in the contract: the provision requiringquarterly window cleaning or the provision requiring ABM, at the owner's request, to perform aone-time window cleaning prior to a tenant's occupancy. Goldman's own witness eliminated thefirst possibility (at least for summary judgment purposes) by testifying that the quarterlycleanings were only for in-possession tenants and that he did not know when Goldman occupiedthe space. Moreover, plaintiff presented some evidence that her accident occurred preoccupancy,by stating that construction tools and construction-related materials and dust were [*4]still present. As for the second provision, the dissent criticizes as"oblique" plaintiff's statement that "[t]here has been no testimony that [the building owner]requested the cleaning of the interior windows"; however, that statement, when one is cognizantof the fact that the burden was on Goldman, is entirely appropriate and correct. We further notethat Goldman's witness was not even aware of the provision, and that, moreover, Goldman didnot offer the testimony or affidavit of anybody with personal knowledge regarding whetherplaintiff's work was being performed pursuant to it.
Regardless of Goldman's status, plaintiff's Labor Law § 241 (6) claim against it shouldhave been dismissed. The two Industrial Code sections cited by plaintiff in her brief—12NYCRR 23-1.15 and 23-1.16—apply only where a worker was provided with safetyrailings and safety belts (12 NYCRR 23-1.7) in the first instance (see Dzieran v 1800 Boston Rd., LLC,25 AD3d 336, 337-338 [2006]). Plaintiff's Labor Law § 200 claim should also havebeen dismissed, since Goldman did not supervise plaintiff's work and any dangerous conditionresulted from her employer's methods (see Lombardi v Stout, 80 NY2d 290, 294-295[1992]). We decline, however, to dismiss plaintiff's claim pursuant to Labor Law § 202,which requires owners, lessees, agents and managers of buildings and contractors to provide"safe means for the cleaning of the windows and of exterior surfaces." Contrary to Goldman'sargument, that section does apply to the cleaning of interior windows (see Bauer v FemaleAcademy of Sacred Heart, 250 AD2d 298, 301 n [1998]).
Goldman's claim against ABM for indemnification was properly dismissed as precluded byWorkers' Compensation Law § 11, since Goldman did not have a written indemnificationagreement with ABM and there are no allegations of grave injury (see Tonking v Port Auth. of N.Y. &N.J., 3 NY3d 486, 490 [2004]). The provision in the contract between ABM and theowner relied on by Goldman cannot be read to cover work performed by ABM pursuant to adirect contract with Goldman. Concur—Mazzarelli, Saxe and Kavanagh, JJ.
Nardelli, J. (concurring). I concur with the result reached by the majority, but I also find thatissues of fact exist as to whether plaintiff's own acts or omissions were the sole proximate causeof the accident, thereby precluding summary judgment in her favor.
Labor Law § 240 (1), which is commonly referred to as the scaffold law, provides, inpertinent part, that: "[a]ll contractors and owners and their agents, except owners of one andtwo-family dwellings who contract for but do not direct or control the work, in the erection,demolition, repairing, altering, painting, cleaning or pointing of a building or structureshall furnish or erect, or cause to be furnished or erected for the performance of such labor,scaffolding, hoists, stays, ladders . . . which shall be [*5]so constructed, placed and operated as to give proper protection to aperson so employed" (emphasis added).
The Court of Appeals has often observed that the purpose of the statute is to protect workersby placing the ultimate responsibility for safety practices where such responsibility belongs, onthe owners and general contractors, instead of on the individual workers, who are not in aposition to protect themselves (Martinez v City of New York, 93 NY2d 322, 325-326[1999]; Zimmer v Chemung County Performing Arts, 65 NY2d 513, 520 [1985];Koenig v Patrick Constr. Corp., 298 NY 313, 318 [1948]). Consistent with this objective,the Court of Appeals has stated that the statute places absolute liability upon owners, contractors,and their agents for any breach of the statutory duty which has proximately caused injury and,accordingly, it is to be construed as liberally as necessary to accomplish the purpose for which itwas framed (Panek v County of Albany, 99 NY2d 452, 457 [2003]; Gordon v EasternRy. Supply, 82 NY2d 555, 559 [1993]).
The application of "absolute liability" in section 240 (1) cases has, apparently, generatedsome confusion. Accordingly, in Blakev Neighborhood Hous. Servs. of N.Y. City (1 NY3d 280, 286-287 [2003]), the Court ofAppeals clarified the use of the words strict or absolute liability in conjunction with the statute,noting that those terms do not appear in the current, or any former variation of the statute but,rather, were first used by the Court of Appeals in 1923 to describe an employer's duty under thatsection. The Court in Blake went on to caution that: "[i]t is imperative . . .to recognize that the phrase 'strict (or absolute) liability' in the Labor Law § 240 (1) contextis different from the use of the term elsewhere. Often, the term means 'liability without fault'(see generally 3 Harper, James and Gray, Torts § 14.1 et seq. [2d ed1986]), as where a person is held automatically liable for causing injury even though the activityviolates no law and is carried out with the utmost care" (id. at 287-288). The Court ofAppeals further commented that: "[g]iven the varying meanings of strict (or absolute) liability inthese different settings, it is not surprising that the concept has generated a good deal of litigationunder Labor Law § 240 (1). The terms may have given rise to the mistaken belief that a fallfrom a scaffold or ladder, in and of itself, results in an award of damages to the injured party.That is not the law, and we have never held or suggested otherwise" (id. at 288). In sum,to prevail on a section 240 (1) cause of action, the plaintiff must demonstrate that the statute wasviolated and that such violation was a proximate cause of the injuries sustained (Cahill vTriborough Bridge & Tunnel Auth., 4 NY3d 35, 39 [2004]; Delahaye v Saint Anns School, 40AD3d 679, 682 [2007]).
Initially, I agree with the majority's conclusion that, in view of the recent Court of Appealsdecision in Broggy v Rockefeller Group,Inc. (8 NY3d 675, 680 [2007]), the interior window cleaning being performed byplaintiff on the 29th floor of a 40-story office building is expressly afforded protection undersection 240 (1), regardless of whether it is incidental to any of the other activities delineated inthe statute.
The Court in Broggy, however, went on to state that:[*6]
"liability turns on whether a particular window washingtask creates an elevation-related risk of the kind that the safety devices listed in section 240 (1)protect against.
"The burden of showing that an elevation-related risk exists, and that the owner orcontractor did not provide adequate safety devices falls upon the plaintiff" (id. at 681[emphasis added]).
In this matter, I find that there is a plausible view of the evidence, sufficient to raise issues offact, that no statutory violation occurred, and/or that plaintiff's own acts or omissions were thesole cause of the accident. Plaintiff testified that she was aware of the availability of step stoolsbut neglected to request one, and it is unclear if one would have been provided had she sorequested. It is also unclear if the section of the desk on which plaintiff was standing, which waslocated directly in front of the window, could have been removed, or was left in place because itwas a convenient platform from which plaintiff could perform her task. What is clear is that thedesk did not move, shift or wobble, but remained stable. Moreover, plaintiff testified that at thetime of her fall off the desk, she was not looking where she was going or how far it was to theend of the desk, and that a fellow worker called her name immediately prior to her fall, possiblydistracting her as she simply stepped off the end of the desk.
I disagree with the majority's conclusion that "even if it were clear that a step stool wouldhave been provided had plaintiff requested one, defendants, again, failed to present any evidenceas to whether it would have constituted an adequate safety device," for, as the Court of Appealsin Broggy made clear, "[t]he burden of showing that an elevation-related risk exists, andthat the owner or contractor did not provide adequate safety devices falls upon the plaintiff"(Broggy, 8 NY3d at 681). Moreover, while the majority succinctly states that a desk doesnot constitute an adequate safety device, a point with which I agree, the use of a desk to washwindows, depending on the facts presented, also does not, in and of itself, preclude summaryjudgment in defendants' favor (seegenerally Broggy v Rockefeller Group, Inc., 8 NY3d 675 [2007], supra).
I also find this Court's recent decision in Miro v Plaza Constr. Corp. (38 AD3d 454 [2007]), and the Courtof Appeals' subsequent modification of that decision (9 NY3d 948 [2007]), to be instructive. InMiro, the plaintiff was allegedly injured when he slipped and fell from a ladder that waspartially covered with sprayed-on fireproofing material, which purportedly caused him to lose hisfooting. Plaintiff was aware of the undesirability of the ladder, but failed to request a cleanreplacement, although it was clear that there was no replacement on the job site and that onewould have to have been delivered from an off-site storage area. The three-Justice majority, indismissing plaintiff's section 240 (1) claim, concluded that "a plaintiff who knowingly chooses touse defective or inadequate equipment, notwithstanding being aware that he or she could requestor obtain proper equipment, has no claim under Labor Law § 240 (1)" (38 AD3d at 455).The two dissenting Justices would have granted plaintiff partial summary judgment on the issueof liability under section 240 (1), finding, inter alia, that there was no replacement ladder on siteand that plaintiff had testified that he complained to a superintendent about the condition of theladder, but the superintendent simply shrugged.
The Court of Appeals modified, reinstated the section 240 (1) claim, and held, in its entirety,that "[a]ssuming that the ladder was unsafe, it is not clear from the record how easily areplacement ladder could have been procured" (9 NY3d at 949). Here, assuming the desk was[*7]unsafe, plaintiff was aware of the availability of a step stooland failed to request one, although it is unclear if one would have been provided had she done so.
Accordingly, I find that a jury could conclude that either plaintiff's admitted inattentiveness,which caused her to step into midair, or her failure to request a step stool, was the sole proximatecause of the accident. Summary judgment, therefore, in either plaintiff's or defendant's favor, isnot warranted.
Tom, J.P. (dissenting in part). The issue dividing this Court is whether there is any basisunder Labor Law § 240 (1) for imposing liability on a tenant because an employee of acleaning service company, engaged by the building's owner, sustained injury while performingwork specified in the contract between the owner and the cleaning company. The tenant,defendant Goldman Sachs & Co., is a stranger to the contract, and the injured plaintiff has failedto provide any proof to establish that Goldman either contracted for, or exercised control over,the window cleaning work. Thus, there is no basis upon which liability may be imposed onGoldman, and its cross motion to dismiss plaintiff's Labor Law § 240 (1) claim wasproperly granted.
Defendant Goldman was the tenant of the 29th floor of a building owned by nonpartyParamount Group, Inc. Paramount engaged third-party defendant American BuildingMaintenance Co. (ABM), plaintiff's employer, to perform cleaning services for the building. The29th floor had been undergoing renovation work by defendant Henegan Construction Co., hiredby Goldman. On March 22, 2001, plaintiff was assigned to work overtime by an ABMsupervisor. She was directed to proceed to the 29th floor of the building, located at 32 Old SlipRoad in Manhattan, to clean interior office windows. Plaintiff was supplied with only a rag toclean the windows, and she found it necessary to climb onto office desks "to reach the top of thewindows." She sustained injury while "she was cleaning the window in front of her and wasmoving to the left and fell off the desk on to the floor."
Plaintiff sought summary judgment as to liability against Goldman and Henegan on herLabor Law § 240 (1) claim. Goldman cross-moved to dismiss the claims asserted byplaintiff against it under the Labor Law. Henegan also moved for summary judgment dismissingthe complaint, adopting the arguments advanced by Goldman. Henegan additionally soughtdismissal of Goldman's cross claims against it.
To recover under Labor Law §§ 200, 240 and 241 as a member of the specialclass for whose protection these provisions were enacted, it must be established that the plaintiffwas hired by the owner, general contractor or an agent of the owner or general contractor(Mordkofsky v V.C.V. Dev. Corp., 76 NY2d 573, 576-577 [1990]; Whelen vWarwick Val. Civic & Social Club, 47 NY2d 970, 971 [1979]). Liability will not be imposedunder Labor Law § 240 merely because injury was sustained in the vicinity of an ongoingconstruction project, even if the injured party was performing a function related to that project(see Martinez v City of New York, 93 NY2d 322 [1999] [entity for which plaintiff actednot engaged to perform statutorily protected activity]; Gibson v Worthington Div. ofMcGraw-Edison Co., 78 NY2d 1108, 1109 [1991] [same]). As this Court has noted, "Alessee is liable under the statute only where it can be shown [*8]that it was in control of the work site, and one test of such control iswhere the lessee actually hires the general contractor" (Guzman v L.M.P. Realty Corp.,262 AD2d 99, 99 [1999], citing Frierson v Concourse Plaza Assoc., 189 AD2d 609, 611[1993]).
In support of its motion, Goldman submitted the service contract executed by ABM andParamount. The contract provides that ABM, as contractor, will perform all window cleaning,encompassing the cleaning of "all interior and exterior windows and frames," to be performed"every three (3) months." The contract further states: "Prior to tenant occupancy, contractor shallprovide the initial cleaning o[f] all interior windows for which there will be no charge toParamount Group, Inc. or tenant. Work to be performed upon request of Paramount Group Inc."
The cleaning service contract unambiguously provides that, at Paramount's request, ABMwill clean all interior windows prior to tenant occupancy. Plaintiff has conceded that, as of thedate of her injury, March 22, 2001, Goldman had not yet taken occupancy of the 29th floor. Hersupporting affidavit states that Goldman's employees "moved in their personal items to the 29thfloor on March 23 and 24, 2001." She further restated in her opposition to the cross motion thatGoldman's "employees had not moved into the 29th floor." Thus, on the motion, plaintiff did notraise any factual issue as to whether the work in which she was engaged at the time of heraccident was performed pursuant to ABM's contract with Paramount requiring a one-timecleaning of the interior windows prior to tenant occupancy.
On its cross motion, Goldman also submitted the transcript of deposition testimony given byRobert Barriero, its vice-president for corporate services, to demonstrate that it did notindependently order window cleaning services from ABM. Barriero stated that Goldman received"base building cleaning services from Paramount as part of our lease," which services wereprovided by Paramount's vendor, ABM. He noted that Goldman was required to use the basebuilding cleaning services contractor, and he acknowledged that Goldman's agent, HinesInterests, Ltd., contracted directly with ABM for cleaning work that was not included in the basecleaning services provided under the lease. The supplemental cleaning services he describedwere limited to "[p]antry maintenance, some carpet care, shampooing."
In her opposition to the cross motion, plaintiff did not address the significance of the contractbetween Paramount and ABM except to concede that ABM "had been hired by ParamountGroup, the owner . . . to do cleaning for the tenants in the building." Plaintiff alsoacknowledged that Goldman had directly contracted with ABM for "extra services. . . such as cleaning pantries, stripping and waxing floors and shampooing carpets."She cited the deposition testimony of Al Hoti, an ABM employee, who stated that the cleaningABM performed directly for Goldman consisted of the activities plaintiff described as well as"cleaning refrigerators [and] providing plastic liners," presumably for trash receptacles. Thus, therecord is clear that any extra cleaning services provided to Goldman by ABM did not include thecleaning of windows.
The dispositive evidence in this matter consists of the testimony of Robert Barriero,Goldman's vice-president for corporate services, the testimony of Al Hoti, ABM's employee, andthe contract between ABM and Paramount. Thus, Goldman provided evidence from persons withpersonal knowledge of the facts to establish that plaintiff was hired by ABM, as agent for thebuilding's owner, Paramount Group. No proof was offered by plaintiff, in rebuttal, to support theintimation that she might have been hired by Goldman or its agent, Henegan. Thus, there is nobasis for imposing vicarious liability on Goldman on the ground that plaintiff was hired either byit or by its general contractor.[*9]
It should be emphasized that the sole theory of recoveryagainst Goldman advanced by plaintiff before the motion court was that Goldman is an "owner,"as defined under the Labor Law, because it hired Henegan to perform renovation work at theleased premises. Because she was performing cleaning that was "incidental" to Henegan'sconstruction work, plaintiff reasoned that she is therefore covered by the Labor Law, irrespectiveof who hired her, and that Goldman is vicariously liable under Labor Law § 240 (1).Significantly, plaintiff did not contend that Goldman hired ABM to perform the windowcleaning in which she was engaged at the time of her fall. In fact, she failed to identify anycleaning work that she, as an employee of ABM, performed for Goldman, either directly or at thebehest of Goldman's agent, Hines.
Throughout this litigation, plaintiff has never claimed that Goldman is subject to liabilityunder Labor Law § 240 (1) because it exercised, or had authority to exercise, control overthe work she was performing at the time she sustained injury or because Goldman contracted,either directly or through its agent, with ABM for the window cleaning work in which she wasengaged. On appeal, plaintiff continues to assert that Goldman's liability under Labor Law§ 240 (1) is vicarious, contending that Henegan's duties as construction manager"determine its status as a contractor or agent of Goldman"; that Goldman and Henegan failed intheir statutory duty to provide any safety devices to plaintiff, "a cleaner at a construction site";that her activities were related to the construction work and therefore covered under Labor Law§ 240 (1); and that Goldman is liable for her injuries, which were proximately caused byits breach of the statute. The defect in plaintiff's position is that Henegan did not hire or requestplaintiff to clean the subject windows, and therefore Goldman cannot be held vicariously liable toplaintiff for her injuries. Furthermore, plaintiff's Labor Law § 240 (1) claim againstHenegan has since been dismissed, and this avenue of recovery is unavailing as against eitherparty to the renovation contract.
Plaintiff now obliquely asserts, for the first time on appeal, that "[t]here has been notestimony that Paramount requested the cleaning of the interior windows." She adds, "Goldmanhas just made the assumption that Paramount requested the cleaning of the interior windows."She goes on to state that "Henegan had laborers on site at 32 Old Slip through March 28, 2001,"six days after her accident. Plaintiff intimates that Henegan or Goldman might have requestedABM to assist in cleaning up the 29th floor, but she points to no evidence to support such atheory.
In view of plaintiff's concession that she was employed by ABM and that window cleaningwas undertaken just prior to Goldman's occupancy of the 29th floor, the only explanation for herwork on the date of the accident is ABM's performance of its contract with Paramount providingfor the preoccupancy cleaning of interior windows at the building owner's request. Goldmantherefore demonstrated its prima facie entitlement to summary judgment, placing the burdenupon plaintiff to come forward with evidence in admissible form sufficient to raise a triable issueof material fact (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; seeAlvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Although Goldman squarely raisedthe issue in its opposing papers, plaintiff failed to come forward with any evidence in rebuttal todemonstrate that either Goldman or Henegan had entered into a contract for window cleaningservices with ABM. This omission is notable in view of Barriero's testimony that both Goldmanand its agent, Hines, maintained a record of any funding request made in connection with ABM'sprovision of services outside those provided under the lease in accordance with ABM's contractwith Paramount.[*10]
This Court has consistently observed the rule that aparty may not "argue on appeal a theory never presented to the court of original jurisdiction"(Recovery Consultants v Shih-Hsieh, 141 AD2d 272, 276 [1988], citing Huston vCounty of Chenango, 253 App Div 56, 60-61 [1937], affd 278 NY 646 [1938]; see e.g. Sean M. v City of New York,20 AD3d 146, 149-150 [2005]). As stated in Cohn v Goldman (76 NY 284, 287[1879]), "It is, indeed, a rule, that questions not raised at the trial court, which might have beenobviated by the action of the court then, or by that of the other party, will not be heard on appealas ground of error." Plaintiff should not be heard to argue, for the first time, that Goldman isliable for her injuries because it might have had the authority to exercise control over the worksite, and, indeed, plaintiff makes no such argument.
This is precisely the theory of recovery postulated by the majority on plaintiff's behalf,relying on this Court's decision in Bart v Universal Pictures (277 AD2d 4 [2000]). Itshould be noted, however, that the lessee in Bart was contractually obligated tocontrol the work site and to ensure that the work was safely performed (id. at 5-6; seealso Shun Jian Ke v Hsu & Assoc., 300 AD2d 140 [2002]). There is no proof that Goldmanhad a contract with ABM for window cleaning services, let alone that Goldman was under acontractual obligation to ensure the safety of the work site. Moreover, the majority has cited nocase in which liability under Labor Law § 240 has been predicated on a tenant's mere rightto reenter the premises rather than on the basis of its actual control over the work beingperformed (cf. Guzman v Haven Plaza Hous. Dev. Fund Co., 69 NY2d 559, 565-566[1987] [owner with right of reentry and inspection liable for injury due to defect on premisesunder Multiple Dwelling Law § 78]).[FN*]
The majority takes the position that the evidence is insufficient to entitle Goldman tosummary judgment dismissing plaintiff's Labor Law § 240 (1) claim against it because itfailed to offer evidence by someone with personal knowledge of the facts that plaintiff's windowcleaning work was performed pursuant to the contract between ABM and Paramount. Quite apartfrom ignoring substantial evidence, this supposition presumes that Goldman was capable ofcontracting directly with ABM for the window cleaning work, a proposition that is simplyuntenable. As a matter of fact, it defies credulity that Goldman would contract with ABM for thesame window cleaning services ABM was obligated to provide for Goldman's benefit under itsagreement with Paramount. More significantly, as a matter of law, Goldman could not contractwith ABM for window cleaning services ABM was already obligated to provide under itsexisting contract with Paramount (Megaris Furs v Gimbel Bros., 172 AD2d 209, 212-213[1991] ["one cannot be induced to tender a performance which is required as a part of apreexisting contractual obligation"]). As the Court of Appeals has succinctly observed, "Acovenant to do what one is already under a legal obligation to do is not sufficient considerationfor another contract" (Ripley v International Rys. of Cent. Am., 8 NY2d 430, 441[1960]).
That the window cleaning work was performed pursuant to the agreement between ABM andParamount is confirmed by explicit contract language. It is further supported by Barriero'stestimony that Goldman was obligated under its lease to use ABM's services. Barriero and Hotiboth stated that supplemental cleaning services provided directly to Goldman by ABM did notinclude window cleaning. Thus, there is both documentary and testimonial evidence supportingGoldman's contention that plaintiff's presence at the work site was due to ABM's obligation to[*11]provide initial cleaning of interior windows under itscontract with the building owner.
While the opponent of a summary judgment motion may normally offer an excuse for thefailure to present opposing proof in admissible form (Zuckerman, 49 NY2d at 562),where the opposing party has likewise moved for summary judgment, this option is unavailable.By moving for an accelerated disposition, plaintiff represented that the record proof wassufficient to warrant judgment in her favor. As this Court observed in News Am. Mktg., Inc. v Lepage Bakeries,Inc. (16 AD3d 146, 149 [2005]): "By moving for accelerated judgment, a party submitsthe case for disposition on the record evidence, and the propriety of the court's decision will bereviewed on the basis of that same evidence. It is settled that an appellate court is bound by therecord (Block v Nelson, 71 AD2d 509 [1979]), and, absent matter that is subject tojudicial notice, review is limited to the evidence before the motion court (Broida vBancroft, 103 AD2d 88, 93 [1984]; see also Becker v City of New York, 249 AD2d96, 98 [1998]). As we stated in Ritt v Lenox Hill Hosp. (182 AD2d 560, 562 [1992]), 'Ifa movant, in preparation of a motion for summary judgment, cannot assemble sufficient proof todispel all questions of material fact, the motion should simply not be submitted.' " Having movedfor judgment on the record, plaintiff cannot now assert, contrariwise, that the record does notsupport the motion court's disposition on the evidence before it.
Finally, plaintiff has not proffered any excuse for her failure to submit admissible opposingevidence in opposition to the cross motion to warrant trial of an issue of fact. Thus, she hasoffered neither proof to controvert Goldman's evidence demonstrating that she performedwindow cleaning in accordance with Paramount's contract with her employer nor an excuse forher failure to do so, and her opposition fails to meet the requirements to defeat a motion forsummary judgment (Zuckerman, 49 NY2d at 562). The intimation that Goldman mighthave directly hired ABM to do unspecified cleaning work, for reasons not even suggested, isspeculative and does not suffice to meet her obligation "to submit evidentiary facts or materials,by affidavit or otherwise, rebutting the prima facie showing . . . and demonstratingthe existence of a triable issue of ultimate fact" (Indig v Finkelstein, 23 NY2d 728, 729[1968]). It is settled that "mere conclusions, expressions of hope or unsubstantiated allegations orassertions are insufficient" (Zuckerman, 49 NY2d at 562).
Accordingly, plaintiff failed to rebut Goldman's prima facie showing that it did not hire heremployer to perform window cleaning work, and her Labor Law § 240 (1) claim againstsaid defendant was properly dismissed.
Footnote *: It is clear that the majority findsno liability based on Goldman's actual control over the premises because it agrees that there is nobasis for common-law liability under Labor Law § 200.