Calendar Date: November 12, 2013
Cellino & Barnes, PC, Rochester (Richard P. Amico of counsel), for appellant.
Law Offices of Theresa J. Puleo, Syracuse (P. David Twichell of counsel), for respondents.
Before: Rose, J.P., McCarthy, Spain and Egan Jr., JJ.
MEMORANDUM AND ORDER
Appeal from an order of the Supreme Court (Mulvey, J.), entered September 5, 2012 in Tompkins County, which denied plaintiff's motion for partial summary judgment on the issue of liability.
Plaintiff's employer was hired to expand the parking area outside of an apartment building which necessitated the removal of several trees. While plaintiff was removing tree limbs with a chainsaw as part of that project, he was injured when a limb he cut knocked over the ladder he was using and caused him to fall. He thereafter commenced this action against defendants, the owner and managers of the apartment building, and asserted claims sounding in negligence and violations of Labor Law §§ 240 (1) and 241 (6). Following joinder of issue and discovery, plaintiff moved for partial summary judgment on the issue of liability under Labor Law § 240 (1). Supreme Court denied the motion, and plaintiff appeals.
In order to recover under Labor Law § 240 (1), plaintiff is obliged to show that he was injured in the course of "the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure " (emphasis added). A tree is a naturally occurring object that is "clearly not a 'building' or a 'structure' within" the meaning of the statute (Lombardi v Stout, 80 N.Y.2d 290, 295-296 ; see Crossett v Wing Farm, Inc., 79 A.D.3d 1334, 1336 ). Plaintiff argues that he is nevertheless entitled to recover under Labor Law § 240 (1) because he was employed in "duties ancillary to" work encompassed by the statute, namely, the expansion of the parking lot (Bolster v Eastern Bldg. & Restoration, Inc., 96 A.D.3d 1123, 1123-1124 ; see Prats v Port Auth. of N.Y. & N.J., 100 N.Y.2d 878, 882 ). His argument is unavailing for the simple reason that construction work, as here, involving only a parking area or highway and nothing more, "does not constitute work on a [building or] structure for purposes of Labor Law § 240 (1)" (Dilluvio v City of New York, 264 A.D.2d 115, 121 , affd 95 N.Y.2d 928 ; see Spears v State of New York, 266 A.D.2d 898, 898 ; Matter of Dillon v State of New York, 201 A.D.2d 793, 794 ; cf. Lombardi v Stout, 80 N.Y.2d at 296 [tree removal adjacent to house construction, driveway and parking lot work is covered]).
Supreme Court thus correctly denied plaintiff's motion, but defendants urge this Court to go further and "exercise our power to search the record and grant partial summary judgment [to defendants] dismissing plaintiff['s] Labor Law § [240 (1)] claim" (Kropp v Town of Shandaken, 91 A.D.3d 1087, 1091 ; see CPLR 3212 [b]; Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 N.Y.2d 106, 111 ). Even viewing the evidence in the light most favorable to plaintiff, "there are no triable issues of fact regarding" defendants' liability under Labor Law § 240 (1) (Ortiz v Fage USA Corp., 105 A.D.3d 720, 722 ; see DiBartolomeo v St. Peter's Hosp. of the City of Albany, 73 A.D.3d 1326, 1327 ). Inasmuch as granting summary judgment to defendants is thus fully warranted by the record and would serve the interest of judicial economy under the circumstances presented here, we grant such relief (see Kropp v Town of Shandaken, 91 A.D.3d at 1091; Falsitta v Metropolitan Life Ins. Co., 279 A.D.2d 879, 881 ).
Rose, J.P., McCarthy and Egan Jr., JJ., concur.
ORDERED that the order is modified, on the law, without costs, by granting partial summary judgment to defendants dismissing the Labor Law § 240 (1) ...