MORALES v. WESTCHESTER STONE CO INC (2009)

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (Nastasi, J.), entered July 31, 2008, as granted that branch of the defendant's motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1).

ORDERED that the order is affirmed insofar as appealed from, with costs.

 The plaintiff alleges that he was injured when, while standing approximately 10 feet above the ground and cutting down a tree on the defendant's property, a tree limb struck him.   The tree removal that the plaintiff was performing was outside the ambit of Labor Law § 240(1) since a tree is neither a building nor structure (see Burr v. Short, 285 A.D.2d 576, 728 N.Y.S.2d 741;  Gavin v. Long Is. Light. Co., 255 A.D.2d 551, 552, 681 N.Y.S.2d 87;  Serviss v. Long Is. Light. Co., 226 A.D.2d 442, 640 N.Y.S.2d 590;  see also Caddy v. Interborough R.T. Co., 195 N.Y. 415, 420, 88 N.E. 747;  Lewis-Moors v. Contel of N.Y., 167 A.D.2d 732, 733, 563 N.Y.S.2d 303, affd. 78 N.Y.2d 942, 573 N.Y.S.2d 636, 578 N.E.2d 434).   In any event, the defendant established, prima facie, that the activity that the plaintiff was performing at the time of the accident constituted routine maintenance outside of a construction or renovation context (see Gavin v. Long Is. Light. Co., 255 A.D.2d at 552, 681 N.Y.S.2d 87;  McGregor v. Bravo, 251 A.D.2d 1002, 674 N.Y.S.2d 240;  cf. Lombardi v. Stout, 80 N.Y.2d 290, 296, 590 N.Y.S.2d 55, 604 N.E.2d 117 [tree removal was part of overall renovation plan] ).   In opposition, the plaintiff failed to raise a triable issue of fact.   The contentions in the affidavits of the plaintiff and his brother, who was present at the time of the accident, that the tree removal was necessary to complete a larger construction or renovation project to repair the building on the premises, the fence next to the tree, or the pavement around the tree, were completely unsupported with evidence or specific factual references.   Accordingly, such contentions were conclusory, without probative value, and insufficient to raise a triable issue of fact (see Carlos v. New Rochelle Mun. Hous. Auth., 262 A.D.2d 515, 516, 692 N.Y.S.2d 428;  Young v. Fleary, 226 A.D.2d 454, 455, 640 N.Y.S.2d 593;  Melia v. Riina, 204 A.D.2d 955, 957, 612 N.Y.S.2d 506).