McMahon v Village of Old Westbury
Annotate this CaseDecided on September 29, 2009
Supreme Court, Nassau County
Christopher McMahon, Plaintiff,
against
Village of Old Westbury, PAUL KOLKER, SUSAN B. KOLKER, COUNTY OF NASSAU, KEYSPAN ENERGY CORPORATION D/B/A/ KEYSPAN ENERGY, KEYSPAN ENERGY CORPORATION D/B/A KEYSPAN CORPORATION, VERIZON NEW YORK, INC., Defendant(s).
6924/06
Atty. for Christopher McMahon Plaintiff
Sullivan, Papain, Block & McGrath
55 Mineola Blvd.
Mineola, NY 11501
516-742-0707
DEFENDANTS
Atty. for Kolker's
Neil Kanzer, Esq.
1325 Franklin Ave., Ste. 320
Garden City, NY 11530
516-741-2121
Atty. for Verizon
Conway, Farrell, Curtin and Kelly
48 Wall Street, 20th Floor
N.Y., NY 10005
212-785-2929
Atty. for Nassau Nassau County Attorney
1 West St. Executive Blvd.
Mineola, NY 11501
516-571-3056
Atty. for Keyspan
George Argiriou, Esq.
175 East Old Country Road
Hicksville, NY 11801
516-545-4644
Atty. for Old Westbury
Law office of Andrea G. Sawyers, Esq.
3 Huntington Quadrangle
Melville, NY 11747
631-501-3100
Angela G. Iannacci, J.
Motion pursuant to CPLR 3212 by the defendant Keyspan Energy Corporation, d/b/a, Keyspan Energy, Keyspan Energy Corporation, d/b/a, Keyspan Corporation ["Keyspan"], for summary judgment dismissing the complaint and all cross claims insofar as interposed against it.
Cross motion pursuant to CPLR 3212 by the defendant Paul Kolker for summary judgment dismissing the complaint and all cross claims insofar as interposed against him.
Cross motion pursuant to CPLR 3212 by the defendant Verizon New York, Inc. for summary judgment dismissing the complaint and all cross claims insofar as interposed against it.
Cross motion pursuant to CPLR 3212 by the defendant Village of Old Westbury for summary judgment dismissing the complaint and all cross claims insofar as interposed against it.
Cross motion pursuant to CPLR 3212 by the defendant County of Nassau for summary judgment dismissing the complaint and all cross claims insofar as interposed against it.
On November 16, 2005, at approximately 1:30 p.m., the plaintiff Christopher McMahon was operating a Town-owned, Ford Ranger pick-up truck and proceeding in an easterly direction toward 106 I.U. Willets Road in the Village of Old Westbury ["the Village"](McMahon [Feb. 2007] Dep., 10-11, 15-16). McMahon — a laborer then employed by the Town of North Hempstead — had been dispatched from Bar Beach earlier that morning and directed to report to Bunky Reid Park in New Cassel (McMahon [Feb 2007] Dep., 14-15, 208-209).
As McMahon reached 106 I.U. Willets Road — a County-owned "main artery" in the Village — he heard a "very large crack" from above. Seconds later, a large tree limb, some eight to 12-15 inches in diameter, came crashing through the windshield near the [*2]steering column like a spear, and violently struck the plaintiff in abdomen and hands, causing him to lose control of the truck (McMahon Dep., 21-25, 223-227; Kolker Dep.,13-14). The tree from which the limb broke was located on a slightly elevated, grassy and/or dirt shoulder along the southeast side of the road, several feet from the edge of the paved street surface (Malatino Dep., 53-54; 80-81; Kolker Dep., 34-38, 44).
As a result of the impact, the truck rolled forward some toward the opposite (north) side of the road and collided into the base of pine tree, which snapped and fell on top of the truck's cab, partially collapsing the roof (McMahon Dep., 30-31, 227-229; Kolker Dep., 11-13).
The plaintiff was subsequently transported by ambulance to Winthrop Hospital, where he began a series of hospital stays and surgical procedures for the injuries he sustained (McMahon Dep., 39-49; Kolker Dep.,49-50).
County and Village public works employees conducted regular and/or daily drive-by inspections of road-side conditions on I. U. Willets Road and no reports or observations were made indicating that the subject tree was defective or otherwise posed any danger to passing motorists (Carbone Dep., 69-71; Malatino Dep.,15 19-21; 31-35, 76 see also, Suppa Dep., 7-12; 15-22, 26; LaMonica Dep., 35-36). Moreover, neither the Village nor the County had any record of receiving any written notification or any citizen complaints with respect to the subject tree (Carbone Dep., 69-71).
In December of 2005, the plaintiff moved for — and was granted — limited pre-action discovery. Specifically, the plaintiff requested: (1) permission to obtain a sample of the remaining portion the damaged tree limb still attached to the then standing tree; and (2) a restraining order precluding the defendants from removing the tree pending resolution of the subject discovery application (Pltff's Exh., "20")(see, CPLR 3102[c]). At approximately the same time, the plaintiff's expert informally visited the accident site, examined the tree and took a number of photographs (DeBonis Aff., ¶¶ 3-4 [Pltff's Exh., "18").
By order dated February 28, 2006, this Court [O'Connell, J.], granted the application to the extent that it authorized the plaintiff to collect "a six inch sample" of the subject, attached tree limb (Pltff's Exh., "22").
The record indicates that the foregoing order was served on the Village on March 3, 2006. However, some two weeks later, the Village and/or its agents removed the tree — leaving only the currently existing stump. The tree was removed before the plaintiff's expert could collect the sample which the Court had expressly authorized (Nash Aff.,¶ 105; Malatino Dep., 64-65).
With respect to the destruction of the tree, the record indicates that the Village Superintendent of Public Works was aware that accident had occurred, but claims that he was never informed that the Court order existed (Malatino Dep., 24-25, 65-66). At some point in early March, 2006, he directed an independent tree contractor the Village had then retained — "Frank Suppa Landscaping Corp" — to perform tree maintenance in and around the accident location. Although Frank Suppa had allegedly brought to the Superintendent's attention that the trees in that area were in need of some "trimming," the entire tree (except for the stump) was nevertheless removed (e.g., Malatino Dep., at 64-70). [*3]
The County has submitted an unsworn letter written by Suppa and addressed to the Village (dated March 28, 2006), which states, inter alia, that upon inspecting the tree at the Village's request one day after the accident, he observed no defects or decay within two feet of the where the limb broke (County Exh., "T" see, Maltino Dep., 62-64; Suppa Dep, 14-16, 28-29). A second unsworn letter dated April 4, 2006, written by Scott Kurkela of the "Bartlett Tree Expert Company," similarly states that upon his inspection of the tree — which was performed at Suppa's request — the limb "break point" showed "no signs of weakness or disease"(County Exh., "T"; Suppa Dep., 20).
Although the plaintiff has not sought affirmative relief with respect to the Village's violation of this Court's order, he has described the destruction of the tree as "grossly negligent" and an "unprofessional" spoliation of evidence, which precluded him from utilizing the sample at trial and deprived his expert of the relief which had been awarded by the Court (Nash Aff., ¶¶ 104-105).
By summons and complaint dated April, 2006, the plaintiff thereafter commenced the within action against the Village of Old Westbury, the County of Nassau, Keyspan, Verizon New York, Inc., and Susan and Paul Kolker — the owners of the adjacent, private residence located at 106 I. U. Willets Road.
As amplified by the plaintiff's bills of particular and a subsequently filed second amended complaint, the plaintiff contends among other things, that the offending tree was visibly diseased, decayed and dangerous to the public; that it limbs extended over I.U. Willets Road; and that, in general, the defendants were negligent in their alleged ownership, inspection and maintenance of the tree (2nd A Cmplt., ¶¶ 64-65, 69-79; BOP,¶¶ 4, 6).
The defendants have answered and denied the material allegations of the complaint. Discovery has been conducted and the defendants now move and cross move for summary judgment dismissing the complaint. The plaintiff has further advised that he does not oppose the dismissal applications of codefendants Keyspan, Verizon, New York, Inc., and the Kolkers. Those motions are therefore granted as unopposed. The remaining motions made by the Village and the County, however, should be denied
"A municipality has a duty to maintain its roadways in a reasonably safe condition, and this duty extends to trees adjacent to the road which could pose a danger to travelers" (Ferrigno v. County of Suffolk, 60 AD3d 726, 727 see also, Ivancic v. Olmstead, 66 NY2d 349, 351 [1985]; Harris v Village of East Hills, 41 NY2d 446, 449, 450 [1977]; Hilliard v. Town of Greenburgh, 301 AD2d 572, 573).
More particularly, a "village has a statutory duty to maintain and inspect the trees on village property which border county roads" while at the same time, a "county has a collateral duty to maintain its roads in a reasonably safe condition" which duty "extends to trees which overhang the road" (Harris v Village of East Hills, supra, 41 NY2d at 449- 450;Michaels v. Park Shore Realty Corp., 55 AD3d 802, 803; Crawford v. Forest Hills Gardens, 34 AD3d 415, 416; Ehlers v. County of Otsego, 12 AD3d 814, 815 see also, Quog v. Town of Brookhaven,273 AD2d 287; Guido v. State of New York, 248 AD2d 592).
Although "[t]here is no duty to consistently and constantly check all trees for nonvisible decay" (Ivancic v. Olmstead, supra, 66 NY2d at 351), constructive notice of a [*4]defect may be imputed to a landowner where a reasonable inspection would have revealed the allegedly "dangerous or defective condition of the tree" (Michaels v. Park Shore Realty Corp., supra, at 803 see, Harris v Village of East Hills, supra; Ferrigno v. County of Suffolk, supra; Crawford v. Forest Hills Gardens, supra,34 AD3d at 416; Ehlers v. County of Otsego, supra see generally, Collado v. Incorporated Town and/or Village of Freeport, 6 AD3d 378, 379; Asnip v. State, 300 AD2d 328 cf., Galindo v. Town of Clarkstown, 2 NY3d 633, 636-637[2004]).
Notably, "the manifestation of * * * decay must be readily observable in order to require a landowner to take reasonable steps to prevent harm" (see, Ivancic v. Olmstead, supra, 66 NY2d at 351; Harris v Village of East Hills, supra; Pulgarin v. Demonteverde, 63 AD3d 1026, 1027; Ferrigno v. County of Suffolk, supra; Simet v. Coleman Co., Inc., 42 AD3d 925, 927; Crawford v. Forest Hills Gardens, supra, 34 AD3d 415).
With these principles in mind, the Court agrees that parties' conflicting expert submissions and claims have generated triable issues of fact with respect to the existence of constructive notice.
Although the Village has submitted, inter alia, the expert affidavit of Conrad Decker, an arborist who examined the remaining tree stump in February of 2009 and found no visible signs of decay or defect at the limb's point of failure (Village Exh., "J"; Decker Aff., ¶¶ 2-7), the plaintiff has generated a triable issue of fact through the submission of, inter alia, his own expert affidavit, authored by Dr. Albert DeBonis (see generally, Ferrigno v. County of Suffolk, supra; Michaels v. Park Shore Realty Corp., supra, 55 AD3d at 802-803; Jurgens v. Whiteface Resort on Lake Placid L.P., 293 AD2d 924, 926 see also, Crawford v. Forest Hills Gardens, supra, 34 AD3d at 416; Hilliard v. Town of Greenburgh, supra).
DeBonis — who, unlike the Village expert — examined the tree prior to its removal, concluded in substance that there were visible signs of disfiguring disease and decay plainly marring major areas of the tree's trunk — defects which, allegedly, should have alerted the defendants that a further inspection was requiredSpecifically, Debonis opined, inter alia, that: (1) certain photos submitted together his affidavit depicted "major areas" of peeled bark, exterior rot, and decay, indicative of progressive disease; (2) that the decayed and diseased nature of the tree was obvious and visible to the naked eye from the street and had likely existed for some two to three years pre-accident; (3); that in light of the obviously diseased condition of the tree, a closer inspection of the tree was required; and (4) that absent that inspection and subsequent remedial intervention, it was foreseeable that the progressively worsening disease affecting the tree would result in the sort of "catastrophic failure" which took place at bar (see, Ferrigno v. County of Suffolk, supra; Michaels v. Park Shore Realty Corp., supra, 55 AD3d at 802-803; Jurgens v. Whiteface Resort on Lake Placid L.P., supra, 293 AD2d at 926 see also, Crawford v. Forest Hills Gardens, supra, 34 AD3d at 416).
In reply, the defendants contend, inter alia, that the plaintiff's expert failed to address and rebut Mr. Decker's projection that the external and internal rot and decay visible in the remaining stump had supposedly been "compartmentalized," and therefore could not have impacted or "coalesced" into the upper extremities of the tree [*5](Decker Aff.,¶¶ 10-14; Gumpert Reply Aff., ¶¶ 7-9).
However, DeBonis' observations and the pictures he took, allegedly established the existence of visible, exterior rot and decay covering "major areas" of then-existing, exterior portion of the tree trunk (Pltff's Exh., "18"). Fairly construed, Debonis' opinion is predicated, in part, on the theory that the rot and decay visible upon "major areas" of the tree's exterior trunk surface established that the tree was unhealthy and diseased, thereby generating an affirmative duty to conduct a further inspection — which would allegedly have disclosed its compromised and dangerous state.
The Court notes that Mr. Decker's brief affidavit does not address the overall condition, health and appearance of the standing tree as it existed when the accident occurred, but instead, offers a narrowly crafted opinion which posits the view there was nothing visibly defective at the "point of failure,"i.e., where the branch snapped; he does not comment upon or assess the implications of the allegedly compromised condition of the trunk and other portions of the tree, where the major areas of exterior rot and decay observed by DeBonis purportedly existed.
Nor has Mr. Decker submitted a reply affidavit addressing Debonis' interpretive analysis and the related, photographic evidence Debonis relied upon in noting that there was visible trunk disease, rot and decay. It also bears noting that Mr. Decker — whose inspection was conducted some three years-post removal — claims that he reviewed "23 pictures" in formulating his opinion (Decker Aff., ¶ 4); however, those photographs are neither attached to his affidavit nor identified with particularly as to their precise source and date of creation.
To the extent that the two unsworn Suppa/Kurkela letters submitted by the County can be viewed as competent submissions on a motion for summary judgment, these documentsmerely generate issues of fact which cannot be summarily resolved upon the papers submitted (see generally, Bright ex rel. Bright v. McGowan, 63 AD3d 1239, 1241; Saeed v. Boulevard Hosp., 109 AD2d 831).
The Court notes that both of the foregoing letters also carefully limit their observational analyses to the immediate area surrounding the point of failure, and offer no commentary or opinion relative to the overall health, appearance and condition of the rest of the tree (County Exh., "T").
Summary judgment is a drastic remedy which must be denied if any doubt exists as to a triable issue or where a material issue of fact is arguable" (Andre v. Pomeroy, 35 NY2d 361 [1974]; Mosheyev v. Pilevsky, 283 AD2d 469).Indeed, "[e]ven the color of a triable issue forecloses the remedy"(In re Cuttitto Family Trust, 10 AD3d 656; Rudnitsky v. Robbins, 191 AD2d 488, 489).
Lastly, the Court notes that Village's moving papers fail to provide any real explanation for its destruction of the tree in March of 2006 (Nash Aff., ¶ 105). Indeed, the Village not only removed the tree, it did so in violation of a pending, Court order before the authorized sample could be collected. Although the plaintiff's expert was able to inspect the tree before it was destroyed (e.g., Klein v. Ford Motor Co., 303 AD2d 376, 378), the Court strongly disapproves of the Village's conduct in compromising evidence rather than preserving it in accord with the Court's directives so that the sample could be secured. [*6]
While affirmative, "spoliation" relief has not been sought in connection with the subject motion sequence, the plaintiff may nevertheless — upon proof of prejudicial impact — request that the Court impose an appropriately commensurate sanction at the trial of the action (Klein v. Ford Motor Co., supra, 303 AD2d at, 377-378 see also, Weber v. Harley Davidson Motor Co., Inc., 58 AD3d 719, 722; 867;Gerber v. Rosenfeld, 18 AD3d 812 cf., Cameron v. Nissan 112 Sales Corp.,10 AD3d 591, 592).
The Court has considered the defendants' remaining contentions, including their assertions regarding Dr. Debonis' qualifications, and concludes that they are lacking in merit (see generally, Lopez v. Gem Gravure Co., Inc., 50 AD3d 1102, 1103; Simpson v. Tenore and Guglielmo, 287 AD2d 613; Erbstein v. Savasatit, 274 AD2d 445, 446)
Accordingly, it is,
ORDERED that the motion and cross motions made respectively by the defendants Keyspan Energy Corporation, d/b/a, Keyspan Energy, Keyspan Energy Corporation, d/b/a, Keyspan Corporation, Verizon, New York, Inc, and Paul Kolker, are granted as unopposed, and it is further,
ORDERED that the cross motions by the defendants Village of Old Westbury and the County of Nassau are denied.
The foregoing constitutes the decision and order of the Court.
This constitutes the decision and order of the court.
Dated: September 29, 2009Angela G. Iannacci, J.S.C.
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