First Department Uses "Unpreserved" Argument to Support Finding of Labor Law 241(6) Liability

In Velasquez v. 795 Columbus LLC, the plaintiff was injured in a slip and fall on a muddy condition that had formed on a concrete floor at a construction site due to rain and a nearby water main break.  He was granted summary judgment against defendants on his Labor Law 241(6) claim.  On appeal, the First Department found that Industrial Code 23-1.7(e), which protects against "tripping" hazards, did not apply.  However, the Court found that 23-1.7(d), which applies to "slipping" hazards and was asserted in plaintiff's complaint and bill of particulars, but not his summary judgment motion, supported plaintiff's claim.  The Court observed that it reached the unpreserved argument "because it is a legal issue that is apparent on the record."  Since the muddy condition was not a part of the work, it constituted a "foreign substance" that caused a slipping condition.