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TREE-CUTTING IS A COVERED ACTIVITY PURSUANT TO LABOR LAW 240 (1) AND 241 (6) IF DONE IN CONNECTION WITH A COVERED CONSTRUCTION PROJECT (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined defendant’s motion for summary judgment on plaintiff’s Labor 240 (1) should not have been granted, defendant’s motion for summary judgment on plaintiff’s Labor Law 241 (6) cause of action was properly denied, and defendant’s motion for summary judgment on plaintiff’s Labor Law 200 cause of action should have been granted. Plaintiff was injured cutting trees, which is a covered activity when done in connection with a construction project:

Although trees are not structures and tree removal in and of itself is not an enumerated activity within the meaning of Labor Law § 240 (1), tree removal performed to facilitate an enumerated activity does come within the ambit of this statute (see Lombardi v Stout, 80 NY2d 290, 296 [1992]). Defendant failed to meet its initial burden on that part of its motion because defendant’s own submissions raised a triable issue of fact whether plaintiff’s tree removal work at the time of the accident was ancillary to the larger construction project, specifically the culvert installation work, that was ongoing at the time of the accident … . Contrary to plaintiff’s further contention, however, the court properly denied his cross motion seeking summary judgment on the issue of defendant’s liability under section 240 (1) inasmuch as plaintiff failed to eliminate all triable issues of fact whether his tree removal work “[fell] into a separate phase easily distinguishable from other parts of the larger construction project” … . …

Although it is well settled that Labor Law § 241 (6) does not apply to a worker who engages in tree trimming that is unrelated to construction, demolition or excavation work … , as noted above, there is a triable question of fact whether plaintiff’s work at the time of his accident was related to the culvert installation work and was thus related to construction, demolition or excavation work.  …

[Re: the Labor law 200 cause of action] defendant met its burden … by submitting evidence establishing “that the alleged dangerous condition arose from the . . . methods [of plaintiff’s employer] and that defendant did not exercise supervisory control over the removal of the tree or any aspect of plaintiff’s activities” … . Krencik v Oakgrove Constr., Inc., 2020 NY Slip Op 04642, Fourth Dept 8-20-20

 

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