        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

373
CA 15-01415
PRESENT: CENTRA, J.P., CARNI, DEJOSEPH, CURRAN, AND SCUDDER, JJ.


DONALD J. GARVIN, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

EDWARD C. WOJCIK, JR., DEFENDANT-RESPONDENT.


CHIACCHIA & FLEMING, LLP, HAMBURG (DANIEL J. CHIACCHIA OF COUNSEL),
FOR PLAINTIFF-APPELLANT.

BOUVIER PARTNERSHIP, LLP, BUFFALO (NORMAN E.S. GREENE OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (John A.
Michalek, J.), entered April 21, 2015 in a personal injury action.
The order granted defendant’s motion for summary judgment dismissing
plaintiff’s complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion is denied
and the complaint is reinstated.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries he sustained while cutting down a tree on defendant’s
property. Plaintiff and a third party volunteered to help defendant
remove trees from his property. Defendant told the parties which
direction a certain tree needed to fall, and the parties decided to
delimb the tree first. Using his own chainsaw and defendant’s ladder,
plaintiff started removing branches from the tree. Defendant
positioned the ladder after each branch was removed. Plaintiff had
cut almost all the way through one particular branch and commented to
defendant and the third party, who were standing on the ground, that
the branch was not sagging as he had expected it would. Plaintiff
testified that either defendant or the third party or both told him to
“just cut it.” Plaintiff continued cutting, and then the branch
suddenly swung toward him and struck the ladder, causing him to fall
to the ground and sustain injuries.

     Supreme Court erred in granting defendant’s motion for summary
judgment dismissing the complaint. It is well settled that a
landowner owes those on his property a duty of “reasonable care under
the circumstances” (Basso v Miller, 40 NY2d 233, 241). Here,
plaintiff was not injured owing to an unsafe condition on the
property, but rather he was injured as “the direct result of the
manner in which [he] engaged in a voluntary activity” on the property
                                 -2-                           373
                                                         CA 15-01415

(Jarvis v Eastman, 202 AD2d 826, 827; see Macey v Truman, 70 NY2d 918,
919, mot to amend remittitur granted 71 NY2d 949). In support of his
motion, defendant failed to establish as a matter of law that his
participation in the injury-producing activity was not causally
related to the accident (see Lichtenthal v St. Mary’s Church, 166 AD2d
873, 875; cf. Macey, 70 NY2d at 919-920; Jones v County of Erie, 121
AD3d 1562, 1562-1563).




Entered:   April 29, 2016                      Frances E. Cafarell
                                               Clerk of the Court
