dissents in part in a memorandum as follows: The issue dividing this Court is whether there is any basis under Labor Law § 240 (1) for imposing liability on a tenant because an employee of a cleaning service company, engaged by the building’s owner, sustained injury while performing work speci*430fied 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 failed to 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 on Goldman, and its cross motion to dismiss plaintiffs Labor Law § 240 (1) claim was properly granted.
Defendant Goldman was the tenant of the 29th floor of a building owned by nonparty Paramount Group, Inc. Paramount engaged third-party defendant American Building Maintenance Co. (ABM), plaintiffs employer, to perform cleaning services for the building. The 29th floor had been undergoing renovation work by defendant Henegan Construction Co., hired by Goldman. On March 22, 2001, plaintiff was assigned to work overtime by an ABM supervisor. She was directed to proceed to the 29th floor of the building, located at 32 Old Slip Road in Manhattan, to clean interior office windows. Plaintiff was supplied with only a rag to clean the windows, and she found it necessary to climb onto office desks “to reach the top of the windows.” She sustained injury while “she was cleaning the window in front of her and was moving to the left and fell off the desk on to the floor.”
Plaintiff sought summary judgment as to liability against Goldman and Henegan on her Labor Law § 240 (1) claim. Goldman cross-moved to dismiss the claims asserted by plaintiff against it under the Labor Law. Henegan also moved for summary judgment dismissing the complaint, adopting the arguments advanced by Goldman. Henegan additionally sought dismissal of Goldman’s cross claims against it.
To recover under Labor Law §§ 200, 240 and 241 as a member of the special class for whose protection these provisions were enacted, it must be established that the plaintiff was 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 v Warwick Val. Civic & Social Club, 47 NY2d 970, 971 [1979]). Liability will not be imposed under Labor Law § 240 merely because injury was sustained in the vicinity of an ongoing construction 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 acted not engaged to perform statutorily protected activity]; Gibson v Worthington Div. of McGraw-Edison Co., 78 NY2d 1108, 1109 [1991] [same]). As this Court has noted, “A lessee is liable under the statute only where it *431can be shown that it was in control of the work site, and one test of such control is where 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 and Paramount. 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 shall provide the initial cleaning o[f] all interior windows for which there will be no charge to Paramount 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, ABM will clean all interior windows prior to tenant occupancy. Plaintiff has conceded that, as of the date of her injury, March 22, 2001, Goldman had not yet taken occupancy of the 29th floor. Her supporting affidavit states that Goldman’s employees “moved in their personal items to the 29th floor on March 23 and 24, 2001.” She further restated in her opposition to the cross motion that Goldman’s “employees had not moved into the 29th floor.” Thus, on the motion, plaintiff did not raise any factual issue as to whether the work in which she was engaged at the time of her accident was performed pursuant to ABM’s contract with Paramount requiring a one-time cleaning of the interior windows prior to tenant occupancy.
On its cross motion, Goldman also submitted the transcript of deposition testimony given by Robert Barriero, its vice-president for corporate services, to demonstrate that it did not independently order window cleaning services from ABM. Barriero stated that Goldman received “base building cleaning services from Paramount as part of our lease,” which services were provided by Paramount’s vendor, ABM. He noted that Goldman was required to use the base building cleaning services contractor, and he acknowledged that Goldman’s agent, Hines Interests, Ltd., contracted directly with ABM for cleaning work that was not included in the base cleaning services provided under the lease. The supplemental cleaning services he described were limited to “[p]antry maintenance, some carpet care, shampooing.”
In her opposition to the cross motion, plaintiff did not address the significance of the contract between Paramount and *432ABM except to concede that ABM “had been hired by Paramount Group, the owner ... to do cleaning for the tenants in the building.” Plaintiff also acknowledged 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 cleaning ABM performed directly for Goldman consisted of the activities plaintiff described as well as “cleaning refrigerators [and] providing plastic liners,” presumably for trash receptacles. Thus, the record is clear that any extra cleaning services provided to Goldman by ABM did not include the cleaning 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, and the contract between ABM and Paramount. Thus, Goldman provided evidence from persons with personal knowledge of the facts to establish that plaintiff was hired by ABM, as agent for the building’s owner, Paramount Group. No proof was offered by plaintiff, in rebuttal, to support the intimation that she might have been hired by Goldman or its agent, Henegan. Thus, there is no basis for imposing vicarious liability on Goldman on the ground that plaintiff was hired either by it or by its general contractor.
It should be emphasized that the sole theory of recovery against 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 the leased premises. Because she was performing cleaning that was “incidental” to Henegan’s construction work, plaintiff reasoned that she is therefore covered by the Labor Law, irrespective of 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 window cleaning in which she was engaged at the time of her fall. In fact, she failed to identify any cleaning work that she, as an employee of ABM, performed for Goldman, either directly or at the behest of Goldman’s agent, Hines.
Throughout this litigation, plaintiff has never claimed that Goldman is subject to liability under Labor Law § 240 (1) because it exercised, or had authority to exercise, control over the 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 was engaged. On appeal, plaintiff continues to assert that *433Goldman’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 in their 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 by its breach of the statute. The defect in plaintiffs position is that Henegan did not hire or request plaintiff to clean the subject windows, and therefore Goldman cannot be held vicariously liable to plaintiff for her injuries. Furthermore, plaintiffs Labor Law § 240 (1) claim against Henegan has since been dismissed, and this avenue of recovery is unavailing as against either party to the renovation contract.
Plaintiff now obliquely asserts, for the first time on appeal, that “[tjhere has been no testimony that Paramount requested the cleaning of the interior windows.” She adds, “Goldman has 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 requested ABM to assist in cleaning up the 29th floor, but she points to no evidence to support such a theory.
In view of plaintiffs concession that she was employed by ABM and that window cleaning was undertaken just prior to Goldman’s occupancy of the 29th floor, the only explanation for her work on the date of the accident is ABM’s performance of its contract with Paramount providing for the preoccupancy cleaning of interior windows at the building owner’s request. Goldman therefore demonstrated its prima facie entitlement to summary judgment, placing the burden upon plaintiff to come forward with evidence in admissible form sufficient to raise a triable issue of material fact (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Although Goldman squarely raised the issue in its opposing papers, plaintiff failed to come forward with any evidence in rebuttal to demonstrate that either Goldman or Henegan had entered into a contract for window cleaning services with ABM. This omission is notable in view of Barriero’s testimony that both Goldman and its agent, Hines, maintained a record of any funding request made in connection with ABM’s provision of services outside those provided under the lease in accordance with ABM’s contract with Paramount.
*434This Court has consistently observed the rule that a party 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 v County 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 been obviated by the action of the court then, or by that of the other party, will not be heard on appeal as ground of error.” Plaintiff should not be heard to argue, for the first time, that Goldman is liable for her injuries because it might have had the authority to exercise control over the work site, and, indeed, plaintiff makes no such argument.
This is precisely the theory of recovery postulated by the majority on plaintiffs behalf, relying on this Court’s decision in Bart v Universal Pictures (277 AD2d 4 [2000]). It should be noted, however, that the lessee in Bart was contractually obligated to control the work site and to ensure that the work was safely performed (id. at 5-6; see also Shun Jian Ke v Hsu & Assoc., 300 AD2d 140 [2002]). There is no proof that Goldman had a contract with ABM for window cleaning services, let alone that Goldman was under a contractual obligation to ensure the safety of the work site. Moreover, the majority has cited no case in which liability under Labor Law § 240 has been predicated on a tenant’s mere right to reenter the premises rather than on the basis of its actual control over the work being performed (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 premises under Multiple Dwelling Law § 78]).*
The majority takes the position that the evidence is insufficient to entitle Goldman to summary judgment dismissing plaintiffs Labor Law 240 (1) claim against it because it failed to offer evidence by someone with personal knowledge of the facts that plaintiffs window cleaning work was performed pursuant to the contract between ABM and Paramount. Quite apart from ignoring substantial evidence, this supposition presumes that Goldman was capable of contracting directly with ABM for the window cleaning work, a proposition that is simply untenable. As a matter of fact, it defies credulity that Goldman would contract- with ABM for the same window cleaning services ABM *435was obligated to provide for Goldman’s benefit under its agreement with Paramount. More significantly, as a matter of law, Goldman could not contract with ABM for window cleaning services ABM was already obligated to provide under its existing 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 a preexisting contractual obligation”]). As the Court of Appeals has succinctly observed, “A covenant to do what one is already under a legal obligation to do is not sufficient consideration for 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 and Paramount is confirmed by explicit contract language. It is further supported by Barriero’s testimony that Goldman was obligated under its lease to use ABM’s services. Barriero and Hoti both stated that supplemental cleaning services provided directly to Goldman by ABM did not include window cleaning. Thus, there is both documentary and testimonial evidence supporting Goldman’s contention that plaintiffs presence at the work site was due to ABM’s obligation to provide initial cleaning of interior windows under its contract with the building owner.
While the opponent of a summary judgment motion may normally offer an excuse for the failure 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 was sufficient 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 submits the case for disposition on the record evidence, and the propriety of the court’s decision will be reviewed on the basis of that same evidence. It is settled that an appellate court is bound by the record (Block v Nelson, 71 AD2d 509 [1979]), and, absent matter that is subject to judicial notice, review is limited to the evidence before the motion court (Broida v Bancroft, 103 AD2d 88, 93 [1984]; see also Becker v City of New York, 249 AD2d 96, 98 [1998]). As we stated in Ritt v Lenox Hill Hosp. (182 AD2d 560, 562 [1992]), ‘If a movant, in preparation of a motion for summary judgment, cannot assemble sufficient proof to dispel all questions of material fact, the motion should simply not be submitted.’ ” Having moved for judgment on the record, plaintiff cannot now assert, contrariwise, that the record does *436not support the motion court’s disposition on the evidence before it.
Finally, plaintiff has not proffered any excuse for her failure to submit admissible opposing evidence in opposition to the cross motion to warrant trial of an issue of fact. Thus, she has offered neither proof to controvert Goldman’s evidence demonstrating that she performed window cleaning in accordance with Paramount’s contract with her employer nor an excuse for her failure to do so, and her opposition fails to meet the requirements to defeat a motion for summary judgment (Zuckerman, 49 NY2d at 562). The intimation that Goldman might have directly hired ABM to do unspecified cleaning work, for reasons not even suggested, is speculative and does not suffice to meet her obligation “to submit evidentiary facts or materials, by affidavit or otherwise, rebutting the prima facie showing . . . and demonstrating the existence of a triable issue of ultimate fact” (Indig v Finkelstein, 23 NY2d 728, 729 [1968]). It is settled that “mere conclusions, expressions or hope or unsubstantiated allegations or assertions are insufficient” (Zuckerman, 49 NY2d at 562).
Accordingly, plaintiff failed to rebut Goldman’s prima facie showing that it did not hire her employer to perform window cleaning work, and her Labor Law § 240 (1) claim against said defendant was properly dismissed.
Reargument granted, and upon reargument, the decision and order of this Court entered April 10, 2008 (50 AD3d 359 [2008]) recalled and vacated and a new decision and order substituted therefor. Leave to appeal to the Court of Appeals granted, as indicated.
It is clear that the majority finds no liability based on Goldman’s actual control over the premises because it agrees that there is no basis for common-law liability under Labor Law § 200.