Bannerman v Village of Hastings-on-Hudson

[*1] Bannerman v Village of Hastings-on-Hudson 2006 NY Slip Op 50012(U) [10 Misc 3d 1068(A)] Decided on January 2, 2006 Justice Court Of Village Of Hastings-on-Hudson, Westchester County DiSalvo, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 2, 2006
Justice Court of Village of Hastings-on-Hudson, Westchester County

Isabella Bannerman, Plaintiff,

against

Village of Hastings-on-Hudson, Defendant



SC-0135

JOSEPH A. DiSALVO, J.

Plaintiff commenced this small claims proceeding by Notice to Defendant dated June 22, 2005. The Village of Hastings-on-Hudson received the Notice on June 24, 2005. By Notice of Motion dated July 28, 2005, the Village moved to dismiss the case on the ground that Plaintiff failed to serve a Notice of Claim pursuant to General Municipal Law §50-e. This Court denied Defendant's motion following oral argument before trial, and then conducted a trial on September 28, 2005 and reserved its decision on the merits of Plaintiff's claim. For the reasons set forth below, this Court finds for Defendant and dismisses Plaintiff's claim.

Plaintiff's Pleading

In her small claims notice, Plaintiff states that she seeks a judgment against the Village of Hastings-on-Hudson for $1400 and alleges that her "car was damaged by falling tree that was on Village property." The Notice does not set forth a specific date when the tree was alleged to have fallen.

Motion to Dismiss

The Village moved to dismiss Plaintiff's claim on the ground that Plaintiff failed to [*2]serve a Notice of Claim upon the Village, as required by General Municipal Law §50-e. Moreover, Defendant notes in its motion, Plaintiff did not move to excuse the failure to serve and, if Plaintiff had, Plaintiff would be unable to prove the requisite a) reasonable excuse, b) lack of prejudice to the Village, and c) meritorious action.

In her response to the motion, Plaintiff [acting pro se, without counsel] claims that:

1)she provided written notice to the Village within 90 days of the alleged damage;[FN1] and

2)even if Plaintiff failed to give the formal notice within 90 days, such a failure was excusable because the Village had actual knowledge of the incident, there is no prejudice to the Village, and Plaintiff has a meritorious claim.

A notice of claim is required in an action seeking money damages from a Village in New York State, CPLR 9801, General Municipal Law §50-e(1)[FN2]. Although plaintiff is proceeding in a small claims action, she nevertheless still must comply with GML notice requirements, Poulmentis v. Town of Southampton,1 Misc 3d 128(A), 781 NYS2d 627 (Table) (App.Term, 9th and 10th Jud'l Dists, 2003), Carren v. Westchester County Community College,176 Misc 2d 490, 674 NYS2d 576 (Mt. Vernon City Ct. 1998), Ragosto v Triborough Bridge & Tunnel Auth., 173 Misc 2d 560 (App Term, 1st Dep't, 1997).

With respect to the claimed notice, the Court finds that the pro se Plaintiff did provide notice to the Village, in that the Village's insurance carrier denied her claim on December 23, 2004 and then considered an appeal of that denial, although it adhered to the its original denial.[FN3] [*3]

It is not necessary to determine whether or not this initial notice, as referenced in the insurance carrier's letter, complied with the technical requirements of the General Municipal Law §50-e(2), because even if the notice was deficient, this Court finds, as is permitted under GML §50-e(3), that adequate grounds exist to excuse any such technical deficiency: the proper person received the notice and the Village did not reject it for failure to comply with the technical requirements of GML §50-e(2).

Moreover, although Plaintiff did not make a formal motion to extend her time to file a notice of claim, such a motion would have been granted because her notice, as acted upon by the insurance carrier, together with a) lack of prejudice to the Village and b) merit to Plaintiff's claim, constitute sufficient bases for this Court to grant an extension under GML §50-e(5). The Village was not prejudiced because it received and acted, through its insurance carrier, within the 90 day period, and Plaintiff's claim has merit to the extent that it poses a legitimate question of whether the Village acted reasonably with respect to the tree's condition after having been notified of the tree's leaning.

Accordingly, this Court denies Defendant's motion to dismiss for failure to serve a Notice of Claim.

Testimony at Trial

Plaintiff testified that her husband, James Nolan, notified the Village that a large tree on Village property near her house was leaning heavily. Plaintiff stated that her husband provided the notification by a telephone call to the Village and by a written letter to the Village. Plaintiff did not produce as an exhibit a copy of her husband's letter. However, Plaintiff introduced a responsive letter from the Village's Department of Parks and Recreation, dated August 23, 2004, in which the Department Supervisor, Raymond M. Gomes, wrote to Mr. Nolan, in part:

The Tree committee has reviewed your letter concerning the tree on Fairlane Drive. It is their opinion that the tree is in acceptable condition and no action should be taken at this time.

Plaintiff testified that the tree about which her husband wrote fell on October 5, 2004 and that the tree brought down nearby electric power wires and that said wires damaged her car, which was parked directly in front of her house. She testified that she inspected the tree after it fell and that she counted its rings, finding more than 150 rings.

Plaintiff introduced and the Court received into evidence photographs of her car, [*4]showing marks on the trunk and side door and showing electric wires on the ground in front of her house. In addition, Plaintiff introduced and, over Defendant's objection, the Court received into evidence two itemized estimates of damage to her 2003 Honda Accord, one from Car Craft Collision, Inc., estimating $1,486.73 of damages, and the second, from Overseas Auto Corp., showing $1,193.36 of damages.

Plaintiff testified that she owned the vehicle but had no proof of ownership with her in Court. At the suggestion of Defendant's attorney, it was agreed that Plaintiff could submit proof of ownership after the trial. Following trial, Plaintiff submitted to the Court a copy of a Certificate of Title showing the 2003 Honda Accord was owned by Isabella E. Bannerman.

Plaintiff, when cross-examined, admitted that the tree went down during a storm, that it had been raining heavily, and that there had been strong winds. In addition, Plaintiff admitted that she had no photos showing that the tree contained any mold or rot or disease. Plaintiff stated that after the tree fell she noticed that the roots did not look very deep.

Plaintiff then called as her next witness Mr. Fred Hubbard who identified himself as a member of the Parks and Recreation Tree Committee. Plaintiff elicited from Mr. Hubbard that he had inspected the tree in August 2004, after her husband had sent the letter to the Village, and that Mr. Hubbard noted that the tree was a massive pin oak, that it leaned west toward Reynold's Field, that it had utility lines passing through its crown, that the condition of the tree should be closely monitored and that the tree was not dead or diseased. Plaintiff rested.

Plaintiff did not produce any expert testimony to support her position that the Village acted negligently with respect to the tree.

Defendant called Mr. Hubbard, also, and sought to have him qualified as its expert witness. Mr. Hubbard identified himself as having a PhD in Natural Resources and 35 years of experience in the field, including the study of issues pertaining to soils, forestry, and water. He testified that he had worked with the Tree Committee for two or three years and that, previously, he had worked for the Army Corp of Engineers. The Court held Mr. Hubbard to be an expert.

Mr. Hubbard identified the tree in question as a pin oak, and stated that a pin oak is a shallow-rooted tree. Mr. Hubbard testified that the tree was not dead or diseased; he stated that he did not observe any of the indicia of decay, noting that the crown appeared green and healthy, that there was no die-back in the upper story, that there was no fungus on the trunk, that there were no squirrel holes - a usual sign of internal rot, and that the tree was not in imminent danger of falling.

Defendant's expert admitted that the tree in question leaned but was not, in his opinion, in danger of falling simply because it leaned; he noted that many trees in the [*5]Village grow in a leaning fashion, that such trees need not be considered inherently dangerous, and that the tree in question had been there for 150 years. Defendant's expert noted that he observed erosion near the tree but not at the base of the tree, that the erosion had been that way for many years, that the

erosion did not contribute to the falling of the tree, and that the storm was the more likely reason for the falling of the tree.

Relevant legal standards

A municipality's operation of a public park is a quasi-private or corporate purpose, not a governmental function, and liability may be imposed for failure to maintain a park in a reasonably safe condition, Caldwell v. Village of Island Park, 304 NY 268, 107 NE2d 441 (1952). The Village of Hastings-on-Hudson, as a governmental entity that is an owner of property, is not an insurer of others' safety, Drew v. State, 146 AD2d 847, 536 NYS2d 252 (3d Dep't 1989), but had a duty to maintain its premises in a reasonably safe condition under all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk, Eleby v. New York City Housing Authority, 223 AD2d 665, 637 NYS2d 219 (2d Dep't 1996), Byrd v. State, 206 AD2d 449, 614 NYS2d 446 (2d Dep't 1994).

To hold a property owner liable for injuries from a falling tree, one must establish that the property owner had actual or constructive notice of a defective condition of the tree, Ivancic v. Olmstead, 66 NY2d 349, 488 NE2d 72, 497 NYS2d 326 (1985). The court in Ivancic considered whether the owner had constructive notice of a defect and noted that "Not one of the witnesses who had observed the tree prior to the fall of the limb testified as to observing so much as a withering or dead leaf, a barren branch, discoloration, or any of the other indicia of disease which would alert an observer to the possibility that the tree or one of its branches was decayed or defective" Ivancic at 351.

In the case at hand, Defendant's expert testified that he inspected the pin oak after the Village received Plaintiff's husband's letter and that he looked for but did not see indicia of disease. The indicia mentioned by Defendant's expert included the items mentioned by the court in Ivancic as well as additional factors. Was it reasonable for the Village to rely on this observation? This Court finds that the Village acted reasonably after it received Plaintiff's husband's letter: it sent its expert to examine the situation; the expert examined the tree in an appropriate fashion, looking for die-back, fungus, evidence of internal rot; the expert noted that the erosion had been there for years, and that the tree, like many others, grew at an angle but had been there for 150 years. Although there was no testimony that the Village inspected the tree between late August 2004 and early October 2004, the tree's falling was linked by Plaintiff and by the expert's testimony to the storm on October 5, 2004 and the expert did not link the falling to any inherent condition of the tree itself. Defendant argued that storms take down healthy trees and that Plaintiff did not prove otherwise. [*6]

Unfortunately for Plaintiff, the law does not provide a remedy for every occurrence. As New York State's Court of Appeals held, in 1870, in Sheldon v. Sherman 3 Hand 484, 42 NY 484, 1870 WL 7733 (1870), 1 Am.Rep. 569:

"There is a large class of cases, in which injury is suffered by a party, where the law gives no redress. If a tree growing upon the land of one is blown down upon the premises of another, and in its fall injures his shrubbery, or his house, or his person, he has no redress against him upon whose land the tree grew." [emphasis supplied] 42 NY at 486.

In 1985, the Court of Appeals revisited the issue and held that a landowner from whose property a branch fell and injured plaintiff was under no duty to consistently check all trees for non-visible decay and would be under an obligation to take reasonable steps to prevent harm if manifestation of decay was readily observable, Ivancic, supra , at 327. In the case at hand, Defendant Village's expert, Mr. Hubbard, inspected the tree in advance of the October 5, 2004 storm and concluded that it was healthy and had no manifestation of decay. Thus, the Village was under no duty to take any reasonable steps to prevent harm. There was no testimony that the condition of the tree changed between the time of Mr. Hubbard's August 2004 inspection and the October 5, 2004 storm.

The Court finds as unrebutted the testimony of the expert that the condition of the tree did not place it in imminent danger of falling and that the storm was the cause of the tree's falling. Plaintiff produced no expert to contradict the findings of Mr. Hubbard.

Accordingly, this Court grants judgment in favor of Defendant Village and dismisses Plaintiff's small claims complaint.

_____________________________

Village Justice C:\htformat\f5001260.txt Footnotes

Footnote 1:Plaintiff attaches an undated letter as an exhibit, claiming it proves that she gave notice within 90 days of the alleged incident, which in her motion opposition papers she states was October 5, 2004. The attached letter mentions no specific date when the tree fell but claims it was in "mid-October of this year." The letter also refers to an enclosed denial of her related claim that she made against Con Edison; however, the motion papers contained no such attachment. Plaintiff's undated letter asks that the letter addressee [the Deputy Village Manager] respond by January 17, 2005. Because of the lack of dates and of any enclosure, it is impossible by looking at the letter for this Court to determine as a matter of fact that the letter was sent within 90 days of October 5, 2004 [January 3, 2005].

Footnote 2:The General Municipal Law §50-e requirement of filing a Notice of Claim applies with respect to actions against any public corporation as defined in New York's General Construction Law. General Construction Law §66 defines a public corporation as including a municipal corporation and defines a municipal corporation as including a village.

Footnote 3:Although Plaintiff's undated letter was not an adequate basis for this Court to find actual notification, Plaintiff attached to her opposition papers a copy of a February 23, 2005 letter from the Village's insurance carrier in which the carrier recites the initial denial of Plaintiff's claim on December 23, 2004, which is within the 90 day period, and then refers to Plaintiff's appeal of that denial and the carrier's adherence to its original position. In this exhibit this Court finds adequate information on which to conclude that Plaintiff provided notice to the Village within 90 days of the alleged incident on October 5, 2005.