The following documents numbered 1 to 6 were read on plaintiff's motion for summary

On October 31, 2012, plaintiff worked for Asplundh Tree Expert Company ("Asplundh"). On that day he began work at about 6 a.m. in Mamaroneck, New York. He and other Asplundh employees were working for Metro North cutting down trees that hurricane Sandy had blown on to Metro North tracks. The trees had to be removed in order for Metro North to resume train service.

In the section of the Metro North tracks where plaintiff was working the trains were powered by overhead wires. The overhead wires are suspended from steel poles called "catenaries." The catenaries are about 30 feet tall and carry communication, power, feeder, signal and control wires that allow Metro North trains to operate on that line.

At about 7:30 p.m., plaintiff was using a gasoline-powered saw to cut down trees that had fallen on the catenary power lines. One of plaintiff's co-workers was using a light to illuminate the work area for plaintiff. Robert Doody, a Metro North supervisor, was at the scene at the time of the accident. The tree plaintiff was cutting down was leaning at about a 30 degree angle on the cables. The tree's circumference was about 18 inches and it extended 10 feet from the point on the trunk where plaintiff made the cut. Plaintiff had a designated escape area to the right of the tree where he could go if something went wrong.

Plaintiff had cut about 75% of the way through the trunk when the pressure of the wires propelled the tree up and towards him. He attempted to run using the escape route but he slipped. The tree then struck his left leg.

On May 17, 2013, plaintiff commenced this personal injury action. The action has been dismissed against the County of Westchester and discontinued against the Town of Mamaroneck.

Plaintiff now moves for summary judgment against the remaining defendants on the issue of liability on his Labor Law § 240(1) claim and for an immediate trial on damages. In support of his motion, plaintiff argues that his accident was a direct result of a gravity related hazard that stemmed from the failure to properly guard and secure the tree he was cutting as well as the failure to provide him with adequate safety equipment. Plaintiff argues that the tree removal work he was performing was repair work. Further, plaintiff argues that his injury was caused by the weight of the tree being cut. He claims the weight pushed down the cables, causing an elastic reaction, propelling the tree back at plaintiff once the force of the weight of the tree was weakened by plaintiff cutting the trunk. Accordingly, this was a gravity related injury for which plaintiff was not provided any safety equipment. Plaintiff also notes that the area was poorly lighted.

In support of his motion, plaintiff relies on the affidavit of Kathleen Hopkins a [*3]certified Site Safety Manager. Hopkins states that plaintiff was engaged in the act of demolishing and altering pursuant to the labor law. Further, Hopkins states that plaintiff should have been provided with a device that would have prevented the tree from flipping caused by the release of tension on the Metro North communication cables. Hopkins also notes there were no ropes or devices attached to the communication cables to control the cables and prevent them from springing up.

Hopkins also notes the lack of illumination at the site. Hopkins states such was improper as the entire site should have been illuminated when plaintiff was cutting the tree trunk.

Plaintiff seeks an immediate trial on the issue of damages.

Metro North and MTA cross move to dismiss the complaint. The MTA argues that pursuant to Public Authorities law § 1264 it is responsible for financing and planning with respect to public transportation and does not operate, maintain or control any facility. Therefore, it could not be held negligent in this case and cannot be held liable for the actions of its subsidiary Metro North.

Metro North and the MTA also argue that plaintiff's Labor Law § 200, § 240(1) and §241(6) claims should be dismissed. With respect to plaintiff's Labor Law § 200 claim, Metro North and the MTA claim they did not supervise or have any control over plaintiff's work. Defendants claim that although Doody was at the site at the time of the accident, he was only there to inform Asplundh employees of the location of the trees that needed to be removed. Defendants argue that at his deposition, Doody testified that he did not interact directly with plaintiff. Further, plaintiff testified that Metro North employees only gave directions to Asplundh's supervisors as to which areas needed to be cleared. Therefore, since defendants did not direct any of Asplundh's work on how to remove the trees they are not liable under Labor Law § 200.

With respect to plaintiff's Labor Law § 240(1) claim, defendants argue plaintiff was not engaged in a covered activity under Labor Law § 240(1) since a tree is not a structure or a building. Defendants argue that tree removal is not an activity covered by Labor Law § 240(1). Defendants also argue that the mere fact that gravity worked upon an object which caused an accident, does not give rise to section 240(1) claim. Defendants note that there was no height difference between plaintiff and the tree he was working on; as both were on the ground. Further, plaintiff was neither hoisting or securing the tree when he was injured. Defendants also argue that Labor Law § 240(1) does not protect against routine work place risks and the work plaintiff was performing was routine tree removal

With respect to plaintiff's Labor Law § 246(1) claim defendants note that Labor Law § 246(1) requires that workers must be provided with adequate safety protection and equipment during demolition or construction projects. However, they argue that Labor Law § 246(1) does not apply to tree removal since it is not a demotion or [*4]construction project.

Metro North and MTA also argue that the Court should preclude Kathleen Hopkins from testifying in this case. Defendants argue that they were not provided with timely notice of this expert. Further, defendants argue that Hopkins resolves the ultimate issue of fact in this case and also note that she did not visit the site. Therefore, defendants argue that her testimony is speculation.

Discussion

The Court will address the motions in the order it deems most logical.

The Court notes that plaintiff does not oppose the MTA's motion for summary judgment dismissing all claims against it. Accordingly, MTA's application is GRANTED.

A party seeking summary judgment bears the initial burden of affirmatively demonstrating its entitlement to summary judgment as a matter of law. (See Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Alvarez v Prospect Hospital, 68 NY2d 320 [1986]). "Once this showing has been made ... the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (see Zuckerman v. City of New York, 49 NY2d 557 [1980]).

"Section 200 of the Labor Law is a codification of the common-law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work. An implicit precondition to this duty is that the party charged with that responsibility have the authority to control the activity bringing about the injury' (Russin v Picciano & Son, 54 NY2d 311, 317). Where the alleged defect or dangerous condition arises from the contractor's methods and the owner exercises no supervisory control over the operation, no liability attaches to the owner under the common law or under Labor Law § 200 (Lombardi v Stout, 80 NY2d 290, 295)." (Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 609 N.Y.S.2d 168 [1993]).

Metro North established prima facie entitlement to summary judgment dismissing plaintiff's Labor Law § 200 claim by showing that neither Metro North or the MTA had control over the work performed by plaintiff. Although Metro North Supervisor Doody was present at the time of the accident he was not controlling or directing plaintiff's [*5]work. Notably, he had no direct interaction with plaintiff. Doody did not direct any Asplundh employees on how to properly remove trees nor did they have any control over the means of the removal of the trees.

In opposition, plaintiff's claim that Metro North was responsible for the inadequate lighting provided to plaintiff and, therefore, negligent pursuant to Labor Law § 200 fails to raise an issue of fact precluding summary judgment dismissing this claim. There is no evidence that Metro North controlled or had any input regarding the work performed by plaintiff.

Accordingly, Metro North's motion to dismiss plaintiff's Labor Law § 200 is GRANTED.

Labor Law § 240. Scaffolding and other devices for use of employees provides, in relevant part:

Metro North established prima face entitlement to summary judgment dismissing the complaint in that none of the hazards recognized by Labor Law § 240(1) are present in this case. Plaintiff was not engaged in an activity covered by § 240(1) since the tree upon which he was working was not a structure (see Morales v Westchester Stone Co., Inc., 63 AD3d 805, 881 N.Y.S.2d 456 [2nd Dept 2009][" The tree removal that [*6]the plaintiff was performing was outside the ambit of Labor Law § 240 (1) since a tree is neither a building nor structure."]; Gavin v Long Is. Light. Co., 255 AD2d 551, 681 N.Y.S.2d 87 [2nd Dept 1998]["At the time of the accident which injured the decedent, and ultimately caused his death, he was engaged by the defendant's contractor in the task of pruning a 12-inch limb of a tree which was in hard' contact with the defendant's power line. The plaintiff's claim must fail since a tree is not a "structure" within the meaning of Labor Law § 240 (1)"]).

Contrary to plaintiff's arguments, the fact that the tree was leaning on utility wires does not render the tree a structure (see Radoncic v. Independence Garden Owners Corp., 67 AD3d 981 [2nd Dept 2009][Defendant's motion dismissing the Labor Law § 240(1) claim was granted where plaintiff who fell off ladder while removing a tree leaning on utilities wires, since trees are not structures.]). Further, plaintiff was not engaged in the repair of the catenaries.

Moreover, the fact that gravity worked on an object which caused plaintiff's injuries is insufficient to support a § 240(1) claim. Here, plaintiff was at ground level and the tree he was removing was at ground level. Labor Law § 240(1) applies to gravity related accidents which consist of falling from a height or being struck by something falling from a height that was improperly hoisted or inadequately secured. Thus, Labor Law § 240(1) relates to "special hazards" presenting "elevation-related risk[s]" ( Rocovich v. Consolidated Edison Co., 78 NY2d 509, 514 [1991]). Liability may only be imposed where the plaintiff's injuries are the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential (Runner v. New York Stock Exch., Inc., 13 NY3d 599, 603 [2009]). That is not the case here.

Accordingly, plaintiff's Labor Law § 240(1) claim is dismissed.

Labor Law § 241(6) provides:

§ 241. Construction, excavation and demolition work

Here, Metro North established prima facie entitlement to summary judgment dismissing plaintiff's Labor Law § 241(6) claim by establishing that plaintiff was not engaged in "construction, excavation or demolition work." (See Enos v. Welatone, Inc., 68 AD3d 713 [2nd Dept 2009]; Gonzalez v. Woodbourne Arboretum, Inc., 100 AD3d 694, 954 N.Y.S.2d 113 [2nd Dept 2012][Since the decedent's accident did not occur in connection with construction, demolition, or excavation work, Labor Law § 241(6) does not apply.]). Notably, the plaintiff here was removing fallen trees. There is no evidence that he was involved in construction, excavation or demolition work.

In opposition, plaintiff fails to raise an issue of fact other than to argue that he was not removing trees at the time of his accident but rather that he was repairing a structure. As noted above, that argument is unpersuasive.

Accordingly, plaintiff's Labor Law § 241(6) claim is dismissed.

MTA's unopposed cross motion for summary judgment is GRANTED. Metro North's cross motion for summary judgment dismissing the complaint is GRANTED. In view of this determination, the Court need not address the propriety of plaintiff's expert disclosure or whether Kathleen Hopkins's expert testimony should be precluded at trial.

Further, plaintiff's motion for summary judgment on the issue of liability on his Labor Law § 240(1) claim is DENIED on the merits.

April 30, 2015

HON. WILLIAM J. GIACOMO, J.S.C.