Injury During Tree-Removal Not Covered by Labor Law Even though the Tree-Removal Was a Prerequisite to the Removal of a Fence—Work on the Fence Had Not Begun at the Time of the Injury

Plaintiff was injured during the cutting and removal of trees along a property line which included a fence.  Although the fence was to be removed, the fence-removal project had not been started at the time of the accident. A fence is a “structure” within the meaning of the Labor Law, so injury while removing a fence would be covered. But because tree-related work is not covered by the Labor Law, and because the fence removal was not underway at the time of the injury, defendants’ motion for summary judgment was properly granted:

Labor Law § 240 (1) affords protection to workers engaged in the “erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure.” Under settled case law, a tree does not qualify as a building or structure …, and — generally speaking — neither tree removal … 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) … and, further, that the statutory protections extend to duties that are ancillary to the enumerated activities set forth therein …, 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” … . Cicchetti v Tower Windsor Terrace, LLC, 2015 NY Slip Op 04375, 3rd Dept 5-21-15