| Galazka v WFP One Liberty Plaza Co., LLC |
| 2008 NY Slip Op 08092 [55 AD3d 789] |
| October 21, 2008 |
| Appellate Division, Second Department |
| Jadwiga Galazka et al., Appellants, v WFP One Liberty PlazaCo., LLC, et al., Respondents, et al., Defendant. (And Other Titles.) |
—[*1] Hoey King Toker & Epstein (Mischel & Horn, P.C., New York, N.Y. [Scott T. Horn], ofcounsel), for respondents WFP One Liberty Plaza Co., LLC, and BFP One Liberty Plaza Co., LLC. Fogarty Felicione & Duffy, Mineola, N.Y. (Paul Felicione of counsel), for respondent ContinentalMachinery Company, Inc. Vincent P. Crisci, New York, N.Y. (David P. Weiser of counsel), for respondent EnvironmentalDisaster Services.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by theirbrief, from so much of three orders of the Supreme Court, Kings County (Vaughan, J.), all dated June13, 2007, as granted those branches of the respective motions of the defendants WFP One LibertyPlaza Co., LLC, and BFP One Liberty Plaza Co., LLC, the defendant Continental MachineryCompany, Inc., and the defendant Environmental Disaster Services which were for summary judgmentdismissing the complaint insofar as asserted against each of them.
Ordered that the orders are affirmed insofar as appealed from, with one bill of costs payable to therespondents appearing separately and filing separate briefs.
The Supreme Court properly awarded summary judgment to the moving defendants [*2]dismissing the plaintiffs' Labor Law § 241 (6) cause of action,based on 12 NYCRR 23-1.7 (d) and (e) (2), insofar as asserted against each of them because the wetplastic upon which the injured plaintiff slipped was an integral part of the asbestos removal project onwhich the injured plaintiff was working (seeO'Sullivan v IDI Constr. Co., Inc., 7 NY3d 805, 806 [2006]). The moving defendantssubmitted evidence that the plastic was specially designed and required to collect the accumulation ofasbestos fibers during asbestos removal, and that safety regulations required the asbestos fibers to beconstantly wet so as to prevent them from filling the air. As such, the wet plastic and asbestos fiberswere neither a "foreign substance" as defined by 12 NYCRR 23-1.7 (d) (see Stafford v Viacom, Inc., 32 AD3d388, 390 [2006]; Salinas v BarneySkanska Constr. Co., 2 AD3d 619, 622 [2003]; Sweet v Packaging Corp. of Am.,Tenneco Packaging, 297 AD2d 421, 422 [2002]; Gist v Central School Dist. No. 1 of Townsof Elma, Marilla, Wales, Lancaster & Aurora, Erie County, & Bennington, Wyoming County, 234AD2d 976, 977 [1996]; Basile v ICF Kaiser Engrs. Corp., 227 AD2d 959 [1996]; cf.Stasierowski v Conbow Corp., 258 AD2d 914, 915 [1999]), nor "debris" within the meaning of12 NYCRR 23-1.7 (e) (2) (see Castillo vStarrett City, 4 AD3d 320, 322 [2004]; Salinas v Barney Skanska Constr. Co., 2AD3d at 622; Harvey v Morse Diesel Intl., 299 AD2d 451, 453 [2002]; Alvia v TemanElec. Contr., 287 AD2d 421, 423 [2001]). In opposition to the moving defendants' prima facieestablishment of their respective entitlements to judgment as a matter of law, the plaintiffs failed to raisea triable issue of fact.
The plaintiffs' remaining contentions either are improperly raised for the first time on appeal or neednot be considered in view of the foregoing. Skelos, J.P., Covello, Balkin and Dickerson, JJ., concur.