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PLAINTIFF WAS INJURED WHILE ON THE GROUND CUTTING A TREE, BECAUSE GRAVITY WAS NOT INVOLVED LABOR LAW 240 (1) DID NOT APPLY, BUT BECAUSE CUTTING THE TREE WAS ANCILLARY TO WORK ON A STRUCTURE, LABOR LAW 241 (6) DID APPLY (SECOND DEPT).

The Second Department, modifying Supreme Court, determined defendant’s motion for summary judgment on plaintiff’s Labor Law 240 (1) cause of action was properly granted, but defendant’s motion for summary judgment on plaintiff’s Labor Law 241 (6) cause of action should have been denied. Plaintiff was on the ground cutting a fallen tree when the tree sprang up, split and struck plaintiff’s leg. The tree had to be removed to get to the catenary wires near a railroad line. The wires are considered a “structure” within the meaning of the Labor Law. Because the accident was not the result of gravity Labor Law 240 (1) did not apply. But because removal of the tree was ancillary to work on the wires, Labor Law 241 (6) applied:

… [Defendant] did establish, prima facie, that the plaintiff’s injuries were “not the direct consequence of the application of the force of gravity to an object or person” … . Rather, the plaintiff’s injuries resulted when the tree was first propelled upward by the sudden release in tension of the catenary wires and then split in two, striking the plaintiff’s leg … . …

“Labor Law § 241(6) imposes a nondelegable duty of reasonable care upon owners and contractors to provide reasonable and adequate protection and safety to persons employed in, or lawfully frequenting, all areas in which construction, excavation or demolition work is being performed” … . ” [T]he courts have generally held that the scope of Labor Law § 241(6) is governed by 12 NYCRR 23-1.4(b)(13), which defines construction work expansively'”… . Under that regulation, construction work consists of “[a]ll work of the types performed in the construction, erection, alteration, repair, maintenance, painting or moving of buildings or other structures” … . Since the plaintiff was engaged in activities ancillary to the repair of the catenary wires, the provisions of Labor Law § 241(6) are also applicable to this case. Accordingly, Metro-North failed to establish, prima facie, that Labor Law § 241(6) was inapplicable to the plaintiff’s activities, and that branch of the cross motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 241(6) insofar as asserted against Metro-North should have been denied, regardless of the sufficiency of the plaintiff’s opposition papers … . De Jesus v Metro-N. Commuter R.R., 2018 NY Slip Op 02150, Second Dept 3-28-18

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF WAS INJURED WHILE ON THE GROUND CUTTING A TREE, BECAUSE GRAVITY WAS NOT INVOLVED LABOR LAW 240 (1) DID NOT APPLY, BUT BECAUSE CUTTING THE TREE WAS ANCILLARY TO WORK ON A STRUCTURE, LABOR LAW 241 (6) DID APPLY (SECOND DEPT))/TREE CUTTING (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF WAS INJURED WHILE ON THE GROUND CUTTING A TREE, BECAUSE GRAVITY WAS NOT INVOLVED LABOR LAW 240 (1) DID NOT APPLY, BUT BECAUSE CUTTING THE TREE WAS ANCILLARY TO WORK ON A STRUCTURE, LABOR LAW 241 (6) DID APPLY (SECOND DEPT))

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