Held v. A.W. Chesterton Co.

Order, Supreme Court, New York County (Helen E. Freedman, J.), entered August 14, 2006, which granted defendant-respondent’s motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

Plaintiffs claim that her decedent’s mesothelioma was caused by respondent engineer’s issuance of insulation specifications requiring or allowing the use of asbestos at the work site, and that such specifications fell below the then-existing professional standard of care for engineers, is improperly raised for the first *178time on appeal (see First Intl. Bank of Israel v Blankstein & Son, 59 NY2d 436, 447 [1983]). In any event, the record establishes that months before plaintiffs decedent began working at the site in October 1972, respondent’s specifications were superseded by interim insulation specifications issued by the site owner that, while indicating a preference for asbestos-free insulation, allowed for their continued use if the owner deemed no available substitute to be acceptable. These superseding specifications would also preclude any Labor Law § 200 claim against respondent based on unsafe work site conditions created by its insulation specifications. We have considered and rejected plaintiffs other arguments. Concur—Mazzarelli, J.P., Andrias, Nardelli, Williams and Gonzalez, JJ.