Thomas M. Bona, P.C.

Attorneys At Law

Third Department: Tree Removal Not Covered By Labor Law


As part of our continuing commitment to provide outstanding representation and to serve as an information resource, we wish to inform you of a recent case from the Third Department interpreting the Labor Law. Labor law cases are famous for being fact intensive and since each case depends on its own facts, it is sometimes hard to reconcile various rulings and to provide bright line guidance. A recent case from the Third Department demonstrates this.


In Cicchetti v. Tower Windsor Terrace, the plaintiff and co-workers were employed by Two Brothers Tree Care. Two Brothers was hired to take down large trees and bush along a fence line separating two adjacent properties as well as chipping the bush and removing debris and wood from the site. The plaintiff was dragging bush from another portion of the property to the wood chipper and passed underneath the area where another worker was cutting a tree. Plaintiff passed beneath the tree as a co-worker above cut a chunk of wood which fell and hit plaintiff on the head, causing serious injuries. Since plaintiff’s sole remedy against his employer was Workers Compensation, he commenced a Labor Law action against the owner of the premises, Tower Windsor Terrace, alleging violations of Labor Law '240(1) and 241(6). Thereafter, defendant moved for summary judgment in dismissing the complaint, which was granted and plaintiff appealed.


On appeal, plaintiff argued that he was engaged in a protected activity at the time and covered by the Labor Law. The Third Department disagreed finding that although '240(1) affords protection to workers engaged in erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure, neither tree removal nor tree cutting constitutes one of the enumerated statutory activities. The Third-Department noted that although prior cases have found that a fence qualifies as a “structure” within the meaning of Labor Law '240(1), the Court found that the fence removal here was not contracted for nor undertaken until much later.


The Appellate Division noted that the demolition work performed by plaintiff’s employer was not performed contemporaneously with the removal of the fence and was part of a separate phase distinguishable from the work that the plaintiff was performing.


The Court found that the fact that the removal of the fence was contemplated from the beginning was irrelevant since it was the timing of the removal and the fact that it was performed by an unrelated third-party that defeated the plaintiff’s claim under Labor Law. Thus, the Third Department found that defendant’s motion for summary judgment was properly granted.


This appears to be the correct result since the prior cases that had found a fence to be a “structure” could be viewed as engaging in creative jurisprudence in order to fashion a remedy for an injured worker. Of course, the next Labor Law case on similar facts could be decided exactly the opposite.


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Thomas M. Bona