Serviss v. Long Island Lighting Co.

Appellate Division of the Supreme Court of New York

Serviss v. Long Island Lighting Co.

226 A.D.2d 442, 640 N.Y.S.2d 590, 1996 N.Y. App. Div. LEXIS 3536

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 8, 1996

StatusPublished

Cited by9 cases

This text of 226 A.D.2d 442 (Serviss v. Long Island Lighting Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Serviss v. Long Island Lighting Co., 226 A.D.2d 442, 640 N.Y.S.2d 590, 1996 N.Y. App. Div. LEXIS 3536 (N.Y. Ct. App. 1996).

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Opinion

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Suffolk County (Oshrin, J.), dated September 19,1994, as, upon [443]*443an order of the same court, dated August 15, 1994, granting the defendant’s motion for summary judgment, dismissed the plaintiff’s causes of action based on Labor Law § 240 (1) and § 200 (1).

Ordered that the judgment is affirmed insofar as appealed from, with costs.

At the time of the accident in which the plaintiff was injured, he was engaged by the defendant’s contractor in the task of pruning the branches of a tree so as to prevent interference with the defendant’s power lines. The plaintiff’s claim must fail since a tree is not a "structure” within the meaning of Labor Law § 240 (1) (see, Lombardi v. Stout, 80 NY2d 290, 295-296; Havens v Witte, 214 AD2d 958, 959). This case is distinguishable from those where tree removal is part of otherwise protected activities involving a structure (see, Lombardi v Stout, supra). The activity the plaintiff was performing at the time of the accident constituted " 'routine maintenance in a non-construction, non-renovation context’ ” (Havens v Witte, supra, at 959; Edwards v Twenty-Four Twenty-Six Main St. Assocs., 195 AD2d 592, 593).

Nor is there any basis to find that the defendant retained supervisory control over the performance of the plaintiff’s activities (see, Lombardi v Stout, supra, at 295; cf., Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 506). The plaintiff’s argument that liability may be imposed under Labor Law § 200 (1) based on certain provisions of the contract between his employer and the defendant is not properly before this Court as it is being raised for the first time on appeal (see, Cooper v City of New York, 81 NY2d 584; Figueroa v New York City Tr. Auth., 213 AD2d 586). Rosenblatt, J. P., O’Brien, Ritter and Goldstein, JJ., concur.

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In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Suffolk County (Oshrin, J.), dated September 19,1994, as, upon [443]*443an order of the same court, dated August 15, 1994, granting the defendant’s motion for summary judgment, dismissed the plaintiff’s causes of action based on Labor Law § 240 (1) and § 200 (1).

Ordered that the judgment is affirmed insofar as appealed from, with costs.

At the time of the accident in which the plaintiff was injured, he was engaged by the defendant’s contractor in the task of pruning the branches of a tree so as to prevent interference with the defendant’s power lines. The plaintiff’s claim must fail since a tree is not a "structure” within the meaning of Labor Law § 240 (1) (see, Lombardi v. Stout, 80 NY2d 290, 295-296; Havens v Witte, 214 AD2d 958, 959). This case is distinguishable from those where tree removal is part of otherwise protected activities involving a structure (see, Lombardi v Stout, supra). The activity the plaintiff was performing at the time of the accident constituted " 'routine maintenance in a non-construction, non-renovation context’ ” (Havens v Witte, supra, at 959; Edwards v Twenty-Four Twenty-Six Main St. Assocs., 195 AD2d 592, 593).

Nor is there any basis to find that the defendant retained supervisory control over the performance of the plaintiff’s activities (see, Lombardi v Stout, supra, at 295; cf., Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 506). The plaintiff’s argument that liability may be imposed under Labor Law § 200 (1) based on certain provisions of the contract between his employer and the defendant is not properly before this Court as it is being raised for the first time on appeal (see, Cooper v City of New York, 81 NY2d 584; Figueroa v New York City Tr. Auth., 213 AD2d 586). Rosenblatt, J. P., O’Brien, Ritter and Goldstein, JJ., concur.

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226 A.D.2d 442, 640 N.Y.S.2d 590, 1996 N.Y. App. Div. LEXIS 3536, Counsel Stack Legal Research, https://law.counselstack.com/opinion/serviss-v-long-island-lighting-co-nyappdiv-1996.

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