Opinion
December 30, 1996.
Order unanimously reversed on the law without costs, motion granted and complaint dismissed.
Present — Denman, P.J., Pine, "Wesley, Doerr and Balio, JJ.
Plaintiff was a laborer employed by a contractor hired by defendant to replace a roof at one of defendant's school buildings. He was injured while carrying a pail of hot tar across an area of the new roof where two-ply felt paper and a water sealant known as "Karnac" or "Zooky" had been applied when he "skidded" on the water sealant, causing the hot tar to splash onto his arm. He commenced this action alleging a Labor Law § 241 (6) cause of action based upon a violation of section 23-1.7 (d) of the Industrial Code ( 12 NYCRR 23-1.7 [d]). That section states that "[i]ce, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing." Supreme Court erred in denying defendant's motion for summary judgment dismissing the complaint. Although plaintiff alleged a violation of a specific safety regulation as required by Ross v Curtis-Palmer Hydro-Elec. Co. ( 81 NY2d 494, 501-505), that regulation has no application to the facts of this case. The water sealant upon which plaintiff slipped does not constitute a foreign substance within the meaning of that regulation but is an integral part of the new roof that was being constructed ( see, Basile v ICF Kaiser Engrs. Corp., 227 AD2d 959; Adams v Glass Fab, 212 AD2d 972, 973; cf., Cottone v Dormitory Auth., 225 AD2d 1032; Durfee v Eastman Kodak Co., 212 AD2d 971, 972, lv dismissed 85 NY2d 968). (Appeal from Order of Supreme Court, Erie County, Glownia, J. — Summary Judgment.)