McGREGOR v. BRAVO (1998)

Supreme Court properly dismissed the Labor Law § 240(1) cause of action.   Plaintiff, an employee of defendants Dean Mortise and Donna Mortise, d/b/a A Cut Above, was injured when he fell to the ground while removing a tree on the premises owned by defendant Joseph Bravo.   Upon learning that the tree had a large cracked limb, Bravo hired A Cut Above to remove it in order to protect the apartment building on the premises from any harm if the tree or its cracked limb fell.   Because the tree removal was not “necessary and incidental to or an integral part” of a protected activity involving a building or structure under Labor Law § 240(1), Bravo is not liable under that section (Mosher v. St. Joseph's Villa, 184 A.D.2d 1000, 1002, 584 N.Y.S.2d 678;  cf., Lombardi v. Stout, 80 N.Y.2d 290, 296, 590 N.Y.S.2d 55, 604 N.E.2d 117).   To the extent that our determination is inconsistent with Mamo v. Rochester Gas & Elec. Corp., 209 A.D.2d 948, 619 N.Y.S.2d 426, lv. dismissed 85 N.Y.2d 924, 627 N.Y.S.2d 325, 650 N.E.2d 1327, we will no longer follow it.

Order unanimously affirmed without costs.

MEMORANDUM: