Opinion
April 8, 1996
Appeal from the Supreme Court, Suffolk County (Oshrin, J.).
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 N.Y.2d 290, 295-296; Havens v. Witte, 214 A.D.2d 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 A.D.2d 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 N.Y.2d 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 N.Y.2d 584; Figueroa v. New York City Tr. Auth., 213 A.D.2d 586). Rosenblatt, J.P., O'Brien, Ritter and Goldstein, JJ., concur.