BURR v. SHORT

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Supreme Court, Appellate Division, Second Department, New York.

Gerald R. BURR, Appellant, v. David SHORT, et al., Respondents.

Decided: July 23, 2001

FRED T. SANTUCCI, J.P., GLORIA GOLDSTEIN, ANITA R. FLORIO and STEPHEN G. CRANE, JJ. Julien & Schlesinger, P.C., New York, N.Y. (Michael S. Schlesinger of counsel), for appellant. Lambiase & Napoletano, P.C., Warwick, N.Y. (Donald J. Lambiase and Somana Rangachar of counsel), for respondents.

In an action to recover damages for personal injuries, the plaintiff appeals from so much of an order of the Supreme Court, Orange County (Peter C. Patsalos, J.), dated April 13, 2000, as granted those branches of the defendants' motion which were for partial summary judgment dismissing the causes of action asserted under Labor Law §§ 240(1) and 241(6).

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

The plaintiff allegedly was injured when, while trimming tree limbs on the defendants' property, a tree limb struck him and the ladder upon which he was standing, causing him to fall to the ground.

 Tree trimming does not fall within the ambit of Labor Law coverage because a tree is not a building or a structure (see, Lombardi v. Stout, 80 N.Y.2d 290, 590 N.Y.S.2d 55, 604 N.E.2d 117).   Furthermore, the activity which the plaintiff was performing at the time of the accident constituted “routine maintenance in a non-construction, non-renovation context” (Gavin v. Long Is. Light. Co., 255 A.D.2d 551, 552, 681 N.Y.S.2d 87;  see also, Serviss v. Long Is. Lighting Co., 226 A.D.2d 442, 640 N.Y.S.2d 590).   Accordingly, the Supreme Court properly dismissed those causes of action predicated upon violations of Labor Law §§ 240(1) and 241(6) (see, Gavin v. Long Is. Light. Co., supra;  see also, Jock v. Fien, 80 N.Y.2d 965, 590 N.Y.S.2d 878, 605 N.E.2d 365;  Yong Ju Kim v. Herbert Constr. Co., 275 A.D.2d 709, 713 N.Y.S.2d 190).

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