McGregor v. Bravo

—Order unanimously affirmed without costs. Memorandum: Supreme Court properly dismissed the Labor Law § 240 (1) cause of action. Plaintiff, an employee of defendants Dean Mortise and Donna Mortise, doing business as A Cut Above, was injured when he fell to the ground while removing a tree on the premises owned by defendant Joseph Bravo. Upon learning that the tree had a large cracked limb, Bravo hired A Cut Above to remove it in order to protect the apartment building on the premises from any harm *1003if the tree or its cracked limb fell. Because the tree removal was not “necessary and incidental to or an integral part” of a protected activity involving a building or structure under Labor Law § 240 (1), Bravo is not liable under that section (Mosher v St. Joseph’s Villa, 184 AD2d 1000, 1002; cf., Lombardi v Stout, 80 NY2d 290, 296). To the extent that our determination is inconsistent with Mamo v Rochester Gas & Elec. Corp. (209 AD2d 948, lv dismissed 85 NY2d 924), we will no longer follow it. (Appeal from Order of Supreme Court, Oneida County, Shaheen, J. — Summary Judgment.) Present — Denman, P. J., Law-ton, Wisner, Balio and Boehm, JJ.