We respectfully dissent on the sole issue before us on this appeal and thus would modify the order by denying the motion in part and reinstating the Labor Law § 241 (6) claim to the extent it is premised on the violation of 12 NYCRR 23-1.7 (d). We agree with the majority *1263that the Court of Claims erred in dismissing that claim by relying on Gaisor v Gregory Madison Ave., LLC (13 AD3d 58 [2004]), inasmuch as any argument by defendant that snow removal was an integral part of claimant’s work is relevant only on the issue of comparative fault (see Booth v Seven World Trade Co., L.P., 82 AD3d 499, 502 [2011]). Nevertheless, we disagree with the majority that we should affirm on other grounds, i.e., that the regulation does not apply to the facts here. As the majority recognizes, defendant did not raise that argument before the court or before us. In our view, it is “fundamentally unfair to determine this issue sua sponte” (Woods v Design Ctr., LLC, 42 AD3d 876, 878 [2007]). We should not be “in the business of blindsighting litigants, who expect us to decide their appeals on rationales advanced by the parties, not arguments their adversaries never made” (Misicki v Caradonna, 12 NY3d 511, 519 [2009]).
In any event, to the extent that this issue can be resolved on the facts in the record before us, we disagree with the majority that 12 NYCRR 23-1.7 (d) does not apply. That regulation requires that an employer “shall not suffer or permit any employee to use a floor, passageway, [or] walkway . . . which is in a slippery condition. Ice, snow, [and] water . . . which may cause slippery footing shall be removed, sanded or covered to provide safe footing.” Here, the record establishes that claimant’s employer was required to replace defective components in a lift mechanism 30 feet below the ground. Employees would gain access to the underground work site by going through a “pit door” located on the sidewalk of the bridge. At the time of the accident, claimant was clearing snow off of the pit door and the sidewalk when he slipped on the pit door and fell onto his back. Inasmuch as the pit door was located on the sidewalk and was the only way to access the underground work site, we conclude that, at the time of his accident, claimant was using a passageway or walkway within the meaning of the regulation (see Fassett v Wegmans Food Mkts., Inc., 66 AD3d 1274, 1277-1278 [2009]; Whalen v City of New York, 270 AD2d 340, 341-342 [2000]). Present — Scudder, P.J., Centra, Garni, Lindley and Martoche, JJ.