Cicchetti v. Tower Windsor Terrace, LLC

• Decision Date: 21 May 2015
• Docket Number: 519820
• Citation: 128 A.D.3d 1262,9 N.Y.S.3d 727,2015 N.Y. Slip Op. 04375
• Parties: Steve CICCHETTI, Appellant, v. TOWER WINDSOR TERRACE, LLC, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

128 A.D.3d 1262
9 N.Y.S.3d 727
2015 N.Y. Slip Op. 04375

Steve CICCHETTI, Appellant
v.
TOWER WINDSOR TERRACE, LLC, et al., Respondents.

519820

Supreme Court, Appellate Division, Third Department, New York.

May 21, 2015.

9 N.Y.S.3d 727

Basch & Keegan, LLP, Kingston (Derek J. Spada of counsel), for appellant.

MacVean Lewis Sherwin & McDermott, P.C., Middletown (Jeffrey D. Sherwin of counsel), for respondents.

Before: PETERS, P.J., EGAN JR., ROSE and LYNCH, JJ.

Opinion

EGAN JR., J.

128 A.D.3d 1262

Appeal from an order of the Supreme Court (Melkonian, J.), entered February 25, 2014 in Ulster County, which granted

9 N.Y.S.3d 728

defendants' motion for summary judgment dismissing the complaint.

At all times relevant, plaintiff was employed as a laborer and salesperson for Jasper Landscaping, Inc., doing business as Two Brothers Landscaping & Tree Care. In September 2008, Two Brothers was hired to provide certain landscaping services at two adjacent properties—then separated by a chain—link fence—owned by defendants. Specifically, and insofar as is relevant to this appeal, Two Brothers was tasked with taking down large trees and brush along this fence line, chipping the brush and removing all debris and large wood from the site.

On the morning in question, plaintiff and his coworkers arrived at the site with a bucket truck, a wood chipper and a log loader. Because Two Brothers' “climber”—the person who, according to plaintiff, normally performed any elevation work—was out sick that day, plaintiff's boss, Bennett Munch, was in the bucket truck doing the actual cutting. Munch began by “skim[ming] out” a large maple tree near the fence—a process that entailed removing the smaller branches with a chainsaw and, according to Munch, lowering those branches to the ground with ropes. Once all the “roping work” had been completed and only the trunk of the tree remained, Munch began “chunking the log down” by cutting sections of the trunk and allowing them to fall to the ground. While Munch was performing this work, plaintiff was dragging brush from another portion of the property to the wood chipper; in so doing, plaintiff passed underneath the area where Munch was cutting the tree. Although plaintiff and Munch each professed to be aware of what the other was doing, plaintiff passed beneath the tree just as Munch cut off a section of the trunk—measuring approximately eight inches in diameter and two to three feet in length. Plaintiff's coworkers called out a warning but, as plaintiff was wearing ear protection, he did not hear them. As a result, plaintiff was struck on the head by the falling chunk of wood and sustained serious injuries.

128 A.D.3d 1263

Plaintiff thereafter commenced this action against defendants alleging violations of Labor Law §§ 240(1) and 241(6). Following joinder of issue and discovery, defendants moved for summary judgment dismissing the complaint. Supreme Court granted defendants' motion, and this appeal by plaintiff ensued.

Plaintiff, as so limited by his brief,¹ contends that he was engaged in a protected activity at the time of his accident and, therefore, Supreme Court erred in granting defendants' motion for summary judgment with respect to the Labor Law § 240(1)...