Thomas M. Bona, P.C.

Attorneys At Law

Labor Law Injured Worker: Tree Falling On Roof To Be Repaired 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 appellate case interpreting the Labor Law.

As we have pointed out previously, the Labor Law is one of the areas of the law where there are many interesting fact patterns. Labor law cases are always fact intensive and there are usually no two cases that are the same.  A recent case from the Second Department demonstrates that.

In Moreira v. Ponzo, plaintiff fell from the roof of a house on an investment property owned by the defendant while in the process of cutting and removing a 50 to 60 foot tall tree that had fallen on the house during Hurricane Irene. The defendant had hired the plaintiff and the plaintiff’s nephew to remove the tree which had caused structural damage to the roof of the house. Following the plaintiff’s accident the remainder of the tree was removed by a landscaping company and the structural damage was then repaired by a different company. Plaintiff commenced an action against the defendant alleging violation of Labor Law 240(1) and 241(6). The defendant moved for summary judgment arguing that the plaintiff was not engaged in an activity covered by the Labor Law. The Supreme Court denied the defendant’s motion and the plaintiff appealed.  The Second Department affirmed the denial of summary judgment.


The Second Department noted at the outset that under Labor Law 240(1), the plaintiff must establish that he was injured during the erection, demolition, repairing, altering or painting of a building or structure. The critical inquiry in determining coverage is what type of work plaintiff was performing at the time of the injury. In this case, both the plaintiff and the defendant conceded that tree cutting and removal by themselves are not activities subject to Labor Law 240(1).  Tree cutting and removal are generally excluded because the tree is not a building or a structure as contemplated by the statute. The Second Department found however that the plaintiff fell from a roof of a building while in the process of removing a falling tree that had fallen on the house during the hurricane and that tree removal was the first step in the process of undertaking structural repairs to the building.


The Second Department noted that the purpose of the Labor Law is to protect workers employed in the acts enumerated even while performing duties ancillary to those acts. The Second Department found that since the plaintiff was working on the roof of the building, he was subject to the sort of risk that Labor Law 240(1) was intended to cover. Thus, the protections of Labor Law 240(1) are to be afforded to tree removal when undertaken during the repair of a structure.  The Second Department also found that the plaintiff was covered under Labor Law 241(6) as he was engaging in construction activity, even if it was ancillary to the repair of the building from which he fell.


Although the result of this case might seem unusual, given the historic liberal interpretation of the Labor Law by the appellate courts, this is simply one more case where Courts find that the Labor Law applies in order to provide a worker with a recovery.


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