Rosenbaum v Mount Hebron Cemetery

[*1] Rosenbaum v Mount Hebron Cemetery 2014 NY Slip Op 50366(U) Decided on February 28, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 28, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2013-286 K C.

Yvette Rosenbaum, Appellant,

against

Mount Hebron Cemetery, Respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered October 4, 2012. The judgment, after a nonjury trial, dismissed the action.

ORDERED that the judgment is affirmed, without costs.

Plaintiff commenced this small claims action to recover for damages sustained to the gravesite and tombstone of her deceased husband as a result of a falling tree. Defendant contended that it was not liable because the unwitnessed occurrence was the result of an "act of God." After a nonjury trial, the Civil Court awarded judgment in favor of defendant dismissing the action.

"An owner of real property on which there are trees is required to maintain them in a reasonably safe condition so that they will not fall and cause injury to persons or
property on or off the property" (5-223 Warren's Negligence in New York Courts § 223.01 [2013]). Liability, however, will not be imposed unless the property owner has actual or constructive notice of the tree's allegedly dangerous or defective condition (see Ivancic v Olmstead, 66 NY2d 349, 350-351 [1985]; Michaels v Park Shore Realty Corp., 55 AD3d 802 [2008]). Plaintiff did not demonstrate that there was a defective condition or, if there was such a condition, that defendant had actual or constructive notice of it. As plaintiff did not meet her initial burden of showing any negligence on defendant's part, she is not entitled to recover for the damage to the gravesite and tombstone (see Redner v Church of the Nazarene, 4 Misc 3d 126[A], 2004 NY Slip Op 50583[U] [App Term, 9th & 10th Jud Dists 2004]).

In view of the foregoing, we find that the judgment provided the parties with substantial justice according to the rules and principles of substantive law (see CCA 1804, 1807; Ross v Friedman, 269 AD2d 584 [2000]). Accordingly, the judgment is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: February 28, 2014