Redner v Church of Nazarene

[*1] Redner v Church of Nazarene 2004 NY Slip Op 50583(U) Decided on June 7, 2004 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 7, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS
PRESENT:DECIDED June 7, 2004 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS PRESENT : McCABE, P.J., RUDOLPH and ANGIOLILLO, JJ.
NO. 2003-662 OR C

JESSICA REDNER and KEVIN REDNER, Respondents, THE

against

CHURCH OF THE NAZARENE, Appellant.

Appeal by defendant from a small claims judgment of the Justice Court, Town of Wallkill, Orange County (R. Freehill, J.), entered January 14, 2003, which awarded plaintiff the sum of $2,000.

Judgment unanimously reversed without costs and action dismissed.

In the instant small claims action, plaintiffs sought damages to replace their inflatable pool which was destroyed when a tree located on defendant's property fell during a storm. Plaintiffs also sought to recover the cost of removing the remnants of
the tree in their yard and of abating an alleged nuisance created by two dead trees located on defendant's property which plaintiffs feared would fall onto their property and cause personal injuries and property damage.

"[I]t is established that no liability attaches to a landowner whose tree falls outside of his premises and injures another unless there exists actual or constructive knowledge of the defective condition * * *" (Ivancic v Olmstead, 66 NY2d 349, 350-351 [1985] [citations omitted]). At trial, plaintiffs presented no evidence that defendant had actual notice that the tree might fall. Nor did plaintiffs present any evidence from which it could be found that defendant had constructive notice regarding the condition of said tree (see Piacquadio v Recine Realty Corp., 84 [*2]NY2d 967 [1994]; Ivancic, 66 NY2d at 350-351). As a result, plaintiffs were not entitled to recover for the damage to their inflatable pool or for the removal of the remnants of the tree in their yard.

In addition, we need not reach the issue of whether defendant was liable to plaintiffs for the removal of the two dead trees, since, in any event, there was a failure of proof as to damages inasmuch as plaintiffs only presented one itemized estimate as to the cost of removing same (see UJCA 1804). In light of the foregoing, the judgment must be reversed and the action dismissed since the judgment did not render
substantial justice between the parties according to the rules and principles of substantive law (see UJCA 1807). Under the circumstances, we do not reach defendant's other contentions.
Decision Date: June 07, 2004