DeGENNARO v. LONG ISLAND RAILROAD (1999)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Roberto, J.), dated March 5, 1998, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The injured plaintiff's employer was hired by the defendant to clear away the brush on its property that hung over certain train tracks and impeded smooth train travel along the tracks.   A tree branch fell on the injured plaintiff's head while he was clearing away other cut branches.

 The plaintiffs' causes of action under Labor Law § 200 and common-law negligence were properly dismissed since the accident occurred as the result of the method of operation used by the injured plaintiff's employer, and the defendant exercised no supervision and control over his work (see Comes v. New York State Elec. & Gas Corp., 82 N.Y.2d 876, 609 N.Y.S.2d 168, 631 N.E.2d 110;  Lombardi v. Stout, 80 N.Y.2d 290, 590 N.Y.S.2d 55, 604 N.E.2d 117).

 The Labor Law § 240(1) cause of action was also properly dismissed because the plaintiff's injuries did not occur from the “erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure” (see, Lombardi v. Stout, 80 N.Y.2d 290, 296, 590 N.Y.S.2d 55, 604 N.E.2d 117).

The court properly dismissed the Labor Law § 241(6) cause of action since the injured plaintiff was not engaged in one of the enumerated activities within the statute and failed to cite to a specific Industrial Code regulation containing concrete specifications applicable to the facts of this case (see, Comes v. New York State Elec. & Gas Corp, supra;  Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 601 N.Y.S.2d 49, 618 N.E.2d 82;  Vernieri v. Empire Realty Co., 219 A.D.2d 593, 597, 631 N.Y.S.2d 378).   Therefore, the Supreme Court properly granted the defendant's motion for summary judgment.

MEMORANDUM BY THE COURT.