State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: May 21, 2015 519820 

________________________________

STEVE CICCHETTI,

Appellant,

v MEMORANDUM AND ORDER

TOWER WINDSOR TERRACE, LLC,

et al.,

Respondents.

________________________________

Calendar Date: March 24, 2015

Before: Peters, P.J., Egan Jr., Rose and Lynch, JJ.

__________

Basch & Keegan, LLP, Kingston (Derek J. Spada of counsel),

for appellant.

MacVean Lewis Sherwin & McDermott, PC, Middletown (Jeffrey

D. Sherwin of counsel), for respondents.

__________

Egan Jr., J.

Appeal from an order of the Supreme Court (Melkonian, J.),

entered February 25, 2014 in Ulster County, which granted

defendants' motion for summary judgment dismissing the complaint.

At all times relevant, plaintiff was employed as a laborer

and salesperson for Jasper Landscaping, Inc., doing business as

Two Brothers Landscaping & Tree Care. In September 2008, Two

Brothers was hired to provide certain landscaping services at two

adjacent properties – then separated by a chain-link fence –

owned by defendants. Specifically, and insofar as is relevant to

this appeal, Two Brothers was tasked with taking down large trees

and brush along this fence line, chipping the brush and removing

all debris and large wood from the site.
-2- 519820 

On the morning in question, plaintiff and his coworkers

arrived at the site with a bucket truck, a wood chipper and a log

loader. Because Two Brothers' "climber" – the person who,

according to plaintiff, normally performed any elevation work –

was out sick that day, plaintiff's boss, Bennett Munch, was in

the bucket truck doing the actual cutting. Munch began by

"skim[ming] out" a large maple tree near the fence – a process

that entailed removing the smaller branches with a chainsaw and,

according to Munch, lowering those branches to the ground with

ropes. Once all the "roping work" had been completed and only

the trunk of the tree remained, Munch began "chunking the log

down" by cutting sections of the trunk and allowing them to fall

to the ground. While Munch was performing this work, plaintiff

was dragging brush from another portion of the property to the

wood chipper; in so doing, plaintiff passed underneath the area

where Munch was cutting the tree. Although plaintiff and Munch

each professed to be aware of what the other was doing, plaintiff

passed beneath the tree just as Munch cut off a section of the

trunk – measuring approximately eight inches in diameter and two

to three feet in length. Plaintiff's coworkers called out a

warning but, as plaintiff was wearing ear protection, he did not

hear them. As a result, plaintiff was struck on the head by the

falling chunk of wood and sustained serious injuries.

Plaintiff thereafter commenced this action against

defendants alleging violations of Labor Law §§ 240 (1) and 241

(6). Following joinder of issue and discovery, defendants moved

for summary judgment dismissing the complaint. Supreme Court

granted defendants' motion, and this appeal by plaintiff ensued. 

Plaintiff, as so limited by his brief,1 contends that he

was engaged in a protected activity at the time of his accident

and, therefore, Supreme Court erred in granting defendants'

motion for summary judgment with respect to the Labor Law § 240

(1) claim. We disagree. Labor Law § 240 (1) affords protection

to workers engaged in the "erection, demolition, repairing,

altering, painting, cleaning or pointing of a building or

1 Plaintiff does not challenge the dismissal of his Labor

Law § 241 (6) claim.
-3- 519820 

structure." Under settled case law, a tree does not qualify as a

building or structure (see Lombardi v Stout, 80 NY2d 290, 295-296

[1992]; Juett v Lucente, 112 AD3d 1136, 1136 [2013], lv dismissed

22 NY3d 1166 [2014]; Crossett v Wing Farm, Inc., 79 AD3d 1334,

1336 [2010]), and – generally speaking – neither tree removal

(see Enos v Werlatone, Inc., 68 AD3d 713, 714 [2009]) nor tree

cutting (see Radoncic v Independence Garden Owners Corp., 67 AD3d

981, 982 [2009]) constitutes one of the enumerated statutory

activities. Although plaintiff correctly notes that a fence

qualifies as a structure within the meaning of Labor Law § 240

(1) (see generally Newman v C. Destro Dev. Co., Inc., 46 AD3d

1452, 1452 [2007]; Carino v Webster Place Assoc., LP, 45 AD3d

351, 352 [2007]) and, further, that the statutory protections

extend to duties that are ancillary to the enumerated activities

set forth therein (see Prats v Port Auth. of N.Y. & N.J., 100

NY2d 878, 882 [2003]; Bolster v Eastern Bldg. & Restoration,

Inc., 96 AD3d 1123, 1123-1124 [2012]; Randall v Time Warner

Cable, Inc., 81 AD3d 1149, 1151 [2011]), the fact remains that

Labor Law § 240 (1) "afford[s] no protection to a plaintiff [who

is] injured before any activity listed in the statute [is] under

way" (Panek v County of Albany, 99 NY2d 452, 457 [2003], citing

Martinez v City of New York, 93 NY2d 322, 326 [1999]; see Enos v

Werlatone, Inc., 68 AD3d at 714; Rivera v Santos, 35 AD3d 700,

702 [2006]; Schroeder v Kalenak Painting & Paperhanging, Inc., 27

AD3d 1097, 1098 [2006], affd 7 NY3d 797 [2006]; Jones v Village

of Dannemora, 27 AD3d 844, 845 [2006]; see also Vasquez v

Minadis, 86 AD3d 604, 606 [2011]).

Even assuming, as plaintiff contends, that defendants fully

intended – as of September 2008 when plaintiff was injured – to

remove, i.e., demolish, the fence between the adjoining parcels

and that the tree cutting performed by Two Brothers was a

necessary prerequisite thereto, the record nonetheless makes

clear that the fence removal was not contracted for and/or

undertaken until November 2008 and that such demolition work was

performed by an unrelated third party. Inasmuch as the "work

undertaken by plaintiff's employer was not performed

contemporaneously with the third-party contractor's [removal of

the fence] and fell into a separate phase easily distinguishable

from other parts" of what plaintiff contended was a larger

landscaping project (Jones v Village of Dannemora, 27 AD3d at 845
-4- 519820 

[internal quotation marks and citation omitted]), plaintiff was

not – at the time of his accident – performing duties that were

ancillary to a Labor Law § 240 (1) activity. Contrary to

plaintiff's assertion, the fact that the removal of the fence may

have been contemplated from the outset is of no moment; it is the

timing of such removal – and the fact that it was performed by an

unrelated third party – that takes plaintiff's claim outside of

the purview and the shelter of Labor Law § 240 (1). Accordingly,

defendants' motion for summary judgment dismissing the complaint

was properly granted (see Rivera v Santos, 35 AD3d at 702; Jones

v Village of Dannemora, 27 AD3d at 845; see also Panek v County

of Albany, 99 NY2d at 457; Crossett v Wing Farm, Inc., 79 AD3d at

1336; compare Prats v Port Auth. of N.Y. & N.J., 100 NY2d at 881-

882; Randall v Time Warner Cable, Inc., 81 AD3d at 1151-1152).

Peters, P.J., Rose and Lynch, JJ., concur.

ORDERED that the order is affirmed, with costs.

ENTER:

Robert D. Mayberger

Clerk of the Court