Nuance is closely associated with New York's Scaffold Law. The Appellate Division, Fourth Department has a line of cases regarding applying Labor Law § 240 (1) to landscaping work in preparation and as part of a larger project. Ells v City of Niagara adds one more holding to the line of caselaw.

In Ells, the plaintiff and his coworkers removed trees to prepare the site for constructing a pedestrian bridge. The plaintiff was assisting in operating a woodchipper when the accident occurred. The plaintiff sustained injuries when a tree that a coworker was cutting down fell and struck him. The plaintiff's employer was the general contractor on the defendant's roadway rehabilitation project.

The Fourth Department concluded that the plaintiff produced evidence establishing that he was engaged in an activity within the protection of Labor Law § 240 (1) when the accident happened. Quoting Krencik v Oakgrove, the Fourth Department stated that the uncontradicted evidence showed that the "'tree removal work [he was engaged in] at the time of the accident was ancillary to the larger construction project . . . that was ongoing at the time of the accident.'" The Fourth Department also stated that the plaintiff met his burden on the motion by submitting an uncontroverted expert affidavit opining that the use of a safety device to control the descent of felled trees was necessary and consistent with the objective of the work being performed at the time of the accident.

The defendant's opposition to the motion prompted the Fourth Department's nuanced analysis. The Fourth Department concluded that the defendant failed to raise a triable issue of fact, "including with respect to whether the tree removal work '[fell] into a separate phase easily distinguishable from other parts of the larger construction project . . .'" Citing Prats v Port Auth. of N.Y. & N.J., the Fourth Department stated that the defendant "conceded that the work was necessary to prepare the site so that construction on the overall project could go forward . . . ."

Would the result have been different if the plaintiff had worked during a separate, discrete preparation stage before construction started? The Fourth Department's citation to Prats indicates the result would have been different. How does the Fourth Department's line of cases square with the New York Court of Appeals' decision Martinez v City of New York? Martinez narrowed the line of caselaw that held owners or general contractors liable when a construction worker was injured while performing almost any activity deemed an "integral and necessary" part of a construction project. Is the Fourth Department's line of caselaw just an "integral and necessary" analysis in disguise? Perhaps Ells or another Fourth Department decision will percolate to the Court of Appeals, and we'll find out.

 Hat tip to my partner Brendan Fitzpatrick for bringing Ells to my attention.