| Enos v Werlatone, Inc. |
| 2009 NY Slip Op 08993 [68 AD3d 713] |
| December 1, 2009 |
| Appellate Division, Second Department |
| Adam Enos, Appellant, v Werlatone, Inc., et al.,Defendants, and Glenn Werlau et al., Respondents. |
—[*1] Ahmuty, Demers & McManus, Albertson, N.Y. (Brendan T. Fitzpatrick of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Putnam County (O'Rourke, J.), datedMarch 13, 2008, as granted those branches of the motion of the defendants Glenn Werlau andChristel Werlau which were pursuant to CPLR 3211 (a) (7) to dismiss the causes of actionalleging a violation of Labor Law § 240 (1) and § 241 (6) insofar as asserted againstthem for failure to state a cause of action, and denied his cross motion for summary judgment onthe issue of liability on the cause of action alleging a violation of Labor Law § 240 (1)insofar as asserted against the defendants Glenn Werlau and Christel Werlau.
Ordered that the order is affirmed insofar as appealed from, with costs.
To successfully assert a cause of action under Labor Law § 240 (1), a plaintiff mustestablish that he or she was injured during "the erection, demolition, repairing, altering, painting,cleaning or pointing of a building or structure" (Labor Law § 240 [1]; see Wein v Amato Props., LLC, 30AD3d 506, 507 [2006]). The statute provides "no protection to a plaintiff injured before anyactivity listed in the statute was under way" (Panek v County of Albany, 99 NY2d 452,457 [2003]). Here, the Supreme Court correctly granted that branch of the motion of thedefendants Glenn Werlau and Christel Werlau (hereinafter the defendants) which was pursuantto CPLR 3211 (a) (7) to dismiss the cause of action alleging a violation of Labor Law §240 (1) since the provisions of that statute are inapplicable to the facts of this case. The plaintiff'sinjuries were not sustained while he engaged in any of the activities enumerated in the statute(see Rivera v Santos, 35 AD3d700, 702 [2006]). The plaintiff allegedly was injured when the defendant Michael Werlaudropped a tree onto his back in the course of removing several trees from property owned by thedefendant Christel Werlau, using equipment owned and leased by the defendant Glenn Werlau.Although the plaintiff asserted in his affidavit and moving papers that the tree removal wasperformed as part of a larger construction and renovation project, these assertions "werecompletely unsupported with evidence or specific factual references. Accordingly, suchcontentions were conclusory, [and] without probative value" (Morales v Westchester Stone Co., Inc., 63 AD3d 805, 806 [2009]).Accordingly, the tree removal activity did not constitute an enumerated activity under the statute,and the plaintiff was not entitled to coverage [*2]under the statute(see Schroeder v Kalenak Painting &Paperhanging, Inc., 7 NY3d 797 [2006]; Martinez v City of New York, 93NY2d 322, 326 [1999]; English v Cityof New York, 43 AD3d 811 [2007]; Holler v City of New York, 38 AD3d 606 [2007]; Rivera vSantos, 35 AD3d at 702; Rodriguezv 1-10 Indus. Assoc., LLC, 30 AD3d 576 [2006]).
Moreover, the Supreme Court correctly dismissed the cause of action alleging a violation ofLabor Law § 241 (6), since the provisions of that statute are also inapplicable to the factsof this case. Specifically, the accident did not arise from construction, excavation, or demolitionwork (see Labor Law § 241 [6]; Nagel v D & R Realty Corp., 99 NY2d98, 101 [2002]; Gleason v Gottlieb,35 AD3d 355 [2006]). "To support a cause of action under Labor Law § 241 (6),a plaintiff must demonstrate that his injuries were proximately caused by a violation of anIndustrial Code provision that is applicable under the circumstances of the accident" (Riverav Santos, 35 AD3d at 702). "[T]he courts have generally held that the scope of Labor Law§ 241 (6) is governed by 12 NYCRR 23-l.4 (b) (13), which defines construction workexpansively" (Vernieri v Empire Realty Co., 219 AD2d 593, 595 [1995]). Nevertheless,although that regulation recites that construction work consists of "[a]ll work of the typesperformed in the construction, erection, alteration, repair, maintenance, painting or moving ofbuildings or other structures" (12 NYCRR 23-l.4 [b] [13]), tree removal alone does not fallwithin any of the enumerated categories. Accordingly, the cause of action alleging a violation ofLabor Law § 241 (6) was properly dismissed.
In light of our determination, it is unnecessary to reach the plaintiff's remaining contentions.Rivera, J.P., Dickerson, Hall and Lott, JJ., concur.