Plaintiff Steve Cicchetti ("plaintiff") commenced this action against defendants Tower [*2]Windsor Terrace, LLC and Tower Management Financing, L.P. (collectively referred to herein as "defendants") alleging causes of action sounding in Labor Law §§ 240 (1) and 241(6) for injuries he allegedly suffered after a falling tree log struck him in the head while he was removing trees and brush from defendants' property on September 18, 2008. Defendants move for an order pursuant to CPLR § 3212 granting summary judgment dismissing plaintiff's complaint.

Plaintiff was employed as a laborer and salesman by non-party Jasper Landscaping, Inc. d/b/a Two Brothers Tree Service ("Two Brothers") which was hired by defendants to take down trees and brush along a certain chain link fence that divided two apartment buildings owned by defendants.

Defendants bear the initial burden to establish a prima facie showing of entitlement to judgment dismissing the causes of action as a matter of law, and to tender sufficient evidence to eliminate any material issues of fact from the case (Zuckerman v City of NY, 49 NY2d 557, 560 [1980]). Once the party seeking summary judgment has made a prima facie showing of entitlement to judgment as a matter of law, the party opposing the motion must come forward with proof in evidentiary form establishing the existence of triable issues of fact or demonstrate an acceptable excuse for its failure to do so (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Mere conclusions, expressions of hope or unsubstantiated allegations are insufficient (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

Labor Law § 240 (1) imposes absolute liability for any breach thereof which is the proximate cause of an injury (Rocovich v Consolidated Edison Co., 78 NY2d 509, 512 [1991]; Bland v Manocherian, 66 NY2d 452, 459 [1985]; Zimmer v Chemung County Perjorming Arts, Inc., 65 NY2d 513, 524 [1985], rearg denied 65 NY2d 1054 [1985]). This is an absolute liability statute, imposing a nondelegable duty upon property owners and general contractors for covered elevation-related injuries to workers at construction or demolition sites, independent of actual supervision or control over the work site (Gordon v Eastern Ry., Supply, Inc., 82 NY2d 555, 560 [1993]; Ross v Curtis-Palmer Hydro-Electric Co., 81 NY2d 494, 500 [1993]; Zimmer v Chemung County Perjorming Arts, Inc., 65 NY2d 513, 521 [1985], rearg denied 65 NY2d 1054 [1985]).

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." 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 NY2d 290, 295—296 [1992]; see, Crossett v Wing Farm, Inc., 79 AD3d 1334, 1336 [2010]). 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 demolition of a chain link fence on defendants' property (see, Bolster v Eastern Bldg. & Restoration, Inc., 96 AD3d 1123, 1123—1124 [2012]; Prats v Port Auth. of NY & N.J., 100 NY2d 878, 882 [2003]).

In support of defendants application to dismiss plaintiff's complaint, defendants submit, inter alia, copies of the pleadings, photographs of the property, deposition transcripts of the parties as well as non-party witness Bennett Gordon Munch, as well as an affidavit from Donald Dinelle.

Plaintiff's testimony reveals that Two Brothers was retained by defendants to perform tree removal work at the premises. He testified that his co-worker, Ben Munch, was in the bucket [*3]truck approximately 20' to 25' in the air working with a chainsaw for approximately 15 to 20 minutes before the accident. He testified that Mr. Munch started by first "skimming out" the tree which means stripping all of the small branches from the tree before starting to cut the larger portions of the tree. He testified that he was in the process of dragging two to three loads to the chipper when he recalls looking up at Mr. Munch in the bucket truck. He testified that as he got closer to the chipper, he recalled looking down at the ground because the ground was uneven. He testified that the next thing he knew, he was struck on the top of his head by a falling log and sustained injury. Plaintiff testified that defendants' property manager, Angela Boyle, told him she wanted the tree removed so that the chain link fence separating the two apartment buildings could be removed. He testified that the tree removal project was completed that day.

David Dublirer, a principal of defendant Tower Management Service, L.P. testified that two months after plaintiff's accident, he hired "Picture Perfect" (a landscaping company) to remove the chain link fence which separated the two apartment buildings. In this regard, defendants submit a receipt from "Picture Perfect Design & Gardening" which indicates that on November 13, 2008, it "rip[ped] out [the] fence."

Defendants have met their initial burden of proof (Martinez v City of New York, 93 NY2d 322 [1999]; see, also, Prats v Port Authority of New York and New Jersey, 100 NY2d 878 [2003]; Panek v County of Albany, 99 NY2d 452 [2003]). Thus, it falls to plaintiff to demonstrate that the law does not support summary judgment and/or assemble and present facts sufficient to require a trial of any issue of fact to defeat the motion (Zuckerman v City of NY, 49 NY2d 557, 562 [1980]).

In opposition, plaintiff submits an affirmation of counsel and his own affidavit in which he avers that "[b]ased on my conversations with the Defendants' employees, namely Ms. Boyle and Mr. Pereyra, the removal of the trees, brush and fence would facilitate the Defendants' exterior maintenance, specifically lawn and exterior maintenance. In addition, removal of the trees, brush and chain link fence would likely increase the value of the Defendants' property by removing an eyesore... I was told by two of the Defendants' employees that the trees and brush were being removed to facilitate the removal of the fence. It is obvious that the Defendants were planning to remove the fence because it was in fact removed shortly after my incident. Also, the chain link fence was old and unsightly... The Defendants' wanted to demolish the barrier between their two properties, which I was in the process of doing when I was injured."

Plaintiff has failed to raise a triable issue of fact. "Section 240 of the Labor Law requires contractors and owners to furnish or erect suitable devices to protect workers when work is being performed on a building or structure." Lombardi v Stout, 80 NY2d 290, 295-296 (1992). The statute affords "no protection to a plaintiff injured before any activity listed in the statute was under way" (Panek v County of Albany, 99 NY2d 452, 457 [2003], citing Martinez v City of New York, 93 NY2d 322 [1999]). In this case, plaintiff was employed by defendants to clear trees and brush from a certain area of land. The only connection that the tree clearing operation had to a protected activity under § 240(1) would be the demolition of the chain link fence which was to occur at some time in the future. It is undisputed that the tree removal was the only activity taking place on the day of plaintiff's accident. Indeed the tree clearing work was completed two months prior to the removal of the fence by a contractor other than plaintiff's employer. Inasmuch as plaintiff has failed to raise a triable issue of fact (see, Juett v Lucente, [*4]977 NYS2d 426 [3rd Dept. 2013]; Crossett v Wing Farm, Inc., 79 AD3d 1334 [3rd Dept. 2010]; Enos v Werlatone, Inc., 68 AD3d 713 [2nd Dept. 2009]; Radoncic v Independence Garden Owners Corp., 67 AD3d 981 [2nd Dept. 2009]; Morales v Westchester Stone Co., Inc., 63 AD3d 805 [2nd Dept. 2009], (Prats v Port Auth. of NY & N.J., 100 NY2d 878, 881 [2003]; see, Beehner v Eckerd Corp., 3 NY3d 751, 752 [2004]; Shpizel v Reo Realty & Constr. Co., 288 AD2d 291 [2nd Dept. 2001]), the complaint is dismissed.

Next, plaintiff has not raised the dismissal of the Labor Law § 241(6) cause of action in opposition to the instant motion and, consequently, has abandoned or waived those issues (see, Transamerica Commercial Fin. Corp. v Matthews of Scotia, 178 AD2d 691, 692 [3rd Dept. 1991]).

Accordingly, defendants' motion for summary judgment is granted without costs and the complaint is dismissed in its entirety.

This constitutes the Decision and Order of the Court. This Decision and Order is returned to the attorneys for the defendants. All other papers are delivered to the County Clerk. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.

SO ORDERED.