ANESTI MARKOGLU v. FREDERIC C. MEOLA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5043-07T1

ANESTI MARKOGLU,

Plaintiff-Appellant,

v.

FREDERIC C. MEOLA and GREENWOOD

TREE EXPERTS,

Defendants-Respondents.

____________________________________

December 7, 2009

Argued November 4, 2009 - Decided

Before Judges Grall and Messano.

On appeal from Superior Court of New

Jersey, Law Division, Special Civil

Part, Morris County, SC-534-08.

Alfred V. Gellene argued the cause for

appellant.

Michael J. Leegan argued the cause for

respondent Frederic C. Meola (Hack, Piro,

O'Day, Merklinger, Wallace & McKenna,

attorneys; Mr. Leegan, of counsel and on

the brief).

Virginia M. Barrett argued the cause for

respondent Greenwood Tree Experts (Barrett

Lazar, attorneys; Marc B. Schuley, of counsel and on the brief).

PER CURIAM

Plaintiff Anesti Markoglu appeals from a judgment dismissing with prejudice his claims against his neighbor, defendant Frederic C. Meola, and Meola's tree specialist, defendant Greenwood Tree Experts. The judgment was entered at the close of Markoglu's case during a trial in the Special Civil Part. It is based upon the judge's determination that Markoglu did not submit evidence that would permit a verdict in his favor. Because the record supports that determination, we affirm. R. 2:11-3(e)(1)(A).

Markoglu filed his complaint on April 8, 2008. He alleged that Meola retained Greenwood to trim and remove trees on property adjacent to Markoglu's and in doing that work Greenwood damaged his garage roof. There is no dispute that Greenwood did the work for Meola in June and July 2006.

The fact in issue was whether Markoglu s garage roof was damaged by a tree limb cut by Greenwood. Although Markoglu used his garage on a regular but not daily basis, he testified that he did not notice the hole in his roof until February 2008. Markoglu admitted that he was not on the property while Greenwood was working and had no witnesses who observed Greenwood's activity. Nonetheless, he had "no doubt" that the roof was damaged when Greenwood cut the limbs of Meola's tree.

Markoglu presented photographs depicting the trees on Meola's property in July 2006 and debris from the work. He also had photographs tending to show there were no trees growing on his property in the vicinity of his garage.

In addition, Markoglu produced photographs taken after he discovered the roof damage in February 2008. Those pictures showed a hole in his sagging garage roof, daylight visible from the interior of the garage through the roof, and personal property that Markoglu alleged was damaged as a consequence of exposure to the elements attributable to the hole. The insurers of his home and business paid on his claims for property damage, minus the deductible amount.

Markoglu did not find a limb on his property or in his garage after discovering the damage to his roof. He had no witness or other evidence tending to show the cause of the damage to his roof other than any inferences available from the timing of the work done on Meola's trees and his discovery of the damage to his roof.

Although the judge found Markoglu's testimony credible and gave him the benefit of all favorable inferences, he concluded that Markoglu's evidence was insufficient to establish that the damage was proximately caused by Meola or Greenwood. Based upon our review of the record, we fully agree that the evidence and the available inferences, viewed in the light most favorable to Markoglu, do not permit a finder of fact to conclude that his garage roof was more likely than not damaged by a limb cut from a tree on his neighbor s property nineteen months before he noticed the hole. R. 4:37-2(b).

Markoglu raises two issues on appeal:

The Court Erred In Ruling That Expert Testimony Was Required as Part of Plaintiff's Case.

The Dismissal of Plaintiff's Complaint Was Unwarranted by the Evidence.

The arguments presented lack sufficient merit to warrant discussion beyond the brief observations that follow. R. 2:11-3(e)(1)(E). The judge's decision rests on the absence of proof of the cause of the damage to the roof, not on the ground that expert testimony is essential to establish the standard of care a tree specialist must exercise. Contrary to Markoglu's view of the doctrine of res ipsa loquitor, it has no relevance in this case because the instrumentality causing the injury was not established. Szalontai v. Yazbo's Sports Caf , 183 N.J. 386, 398 (2005).