Opinion
November 30, 1998
Appeal from the Supreme Court, Nassau County (Levitt, J.).
Ordered that the order is modified, on the law, by deleting the provision thereof granting the plaintiff's cross motion for summary judgment on her cause of action under Labor Law § 240 Lab. (1) and denying that branch of the defendant's motion which was for summary judgment dismissing that cause of action, and substituting therefor a provision denying the plaintiff's cross motion and granting that branch of the defendant's motion which was for summary judgment dismissing the plaintiff's cause of action under Labor Law § 240 Lab. (1); as so modified, the order is affirmed insofar as appealed and cross-appealed from, with costs to the defendant.
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 Lab. (1) ( see, Serviss v. Long Is. Light. Co., 226 A.D.2d 442; Callea v. Niagra Mohawk Power Corp., 254 A.D.2d 696; McGregor v. Bravo, 251 A.D.2d 1002). This case is distinguishable from those where tree removal is part of otherwise protected activities involving a structure ( see, Lombardi v. Stout, 80 N.Y.2d 290). The activity the decedent was performing at the time of the accident constituted "`"routine maintenance in a non-construction, non-renovation context"'" ( Serviss v. Long Is. Light. Co., supra, at 442; see also, Havens v. White, 214 A.D.2d 958, 959).
The plaintiff's remaining contentions are either unpreserved for appellate review or without merit.
Bracken, J. P., Miller, Ritter and Thompson, JJ., concur.