Jose Cerro v. 97 Port Richmond Ave., LLC, et al.

Summary

The Appellate Division, Second Department, affirmed an order granting summary judgment dismissing Jose Cerro's Labor Law § 240(1) claim against 97 Port Richmond Ave, LLC, and Frenchies Port Richmond Equities, LLC. The court held that the plaintiff's tree-cutting work did not involve the erection, demolition, repair, alteration, painting, cleaning, or pointing of a building or structure, and that the tree removal was not part of a larger renovation project. The court also granted the respondents' motion to strike specified portions of the plaintiff's reply brief.

Holdings

1. Tree-cutting work is outside the ambit of Labor Law § 240(1) when the work concerns a tree rather than the erection, demolition, repair, alteration, painting, cleaning, or pointing of a building or structure.
2. The tree cutting did not constitute an alteration of the garage and was not shown to be part of a larger renovation project within Labor Law § 240(1).
3. The Supreme Court properly granted defendants summary judgment dismissing the Labor Law § 240(1) cause of action and properly denied plaintiff's motion for summary judgment on liability.
4. The motion to strike was granted, and the specified portion of plaintiff's reply brief was stricken and not considered in deciding the appeal.

Questions Presented

1. Whether tree-cutting work performed next to a garage constituted work on the erection, demolition, repair, alteration, painting, cleaning, or pointing of a building or structure within the meaning of Labor Law § 240(1).
2. Whether the tree-cutting work was part of a larger renovation project so as to bring it within the protection of Labor Law § 240(1).
3. Whether defendants were entitled to summary judgment dismissing the Labor Law § 240(1) claim and whether plaintiff was entitled to summary judgment on liability.
4. Whether portions of plaintiff's reply brief should be stricken because they raised arguments for the first time in reply and relied on material dehors the record.

Disposition

affirmed