Skalafuris v Arpadi

[*1] Skalafuris v Arpadi 2014 NY Slip Op 50484(U) Decided on March 17, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 17, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., IANNACCI and TOLBERT, JJ
.

Angelo Skalafuris, Appellant,

against

Harry Arpadi, Respondent.

Appeal from an order of the City Court of Mount Vernon, Westchester County (Helen M. Blackwood, J.), entered March 29, 2013. The order, insofar as appealed from, denied plaintiff's motion for summary judgment.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

Plaintiff and defendant are adjoining property owners. The trunk of a large tree at the parties' property border stood, either entirely or primarily, on defendant's side of the property line. In March 2010, a large branch fell from the tree onto plaintiff's property. Plaintiff seeks in this action to recover the damages he allegedly sustained as the result of that incident. Plaintiff moved for summary judgment. Defendant opposed plaintiff's motion and cross-moved for summary judgment dismissing the complaint. The City Court denied both the motion and the cross motion, finding that triable issues of fact exist as to whether the tree was decayed, and, if so, whether defendant had actual or constructive notice of the decay prior to the fall of the branch. This appeal by plaintiff ensued.

On his motion for summary judgment, plaintiff bore the burden of affirmatively establishing his entitlement to judgment as a matter of law (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). For a defendant landowner to be liable in tort to a plaintiff as a result of an allegedly defective condition upon the defendant's real property, the plaintiff must establish that the defective condition existed on the defendant's property, and that the defendant landowner either created the condition or had actual or constructive notice of its existence (e.g. Kruger v Donzelli Realty Corp.,111 AD3d 897, 898 [2013]; Fontana v R.H.C. Dev., LLC, 69 AD3d 561, 562 [2010]). In support of his motion for summary judgment, plaintiff did not claim that defendant had created the condition or that he had actual notice of its existence prior to the fall of the tree limb; rather, plaintiff annexed a photograph which was apparently intended to depict the fallen limb, and the unsigned, unsworn statement of an arborist to the effect that, based on the appearance of the limb following the fall, it "seems like the tree has been infected for about 20 years." Plaintiff also made unsubstantiated assertions that the tree was a red maple, that red maples are prone to disease, and that the "v-shaped" crotch in the tree trunk made defendant's tree especially vulnerable to disease.

"At least as to adjoining landowners, the concept of constructive notice with respect to liability for falling trees is that there is no duty to consistently and constantly check all trees for nonvisible decay. Rather, the manifestation of said decay must be readily observable in order to require a landowner to take reasonable steps to prevent harm" (Ivancic v Olmstead, 66 NY2d 349, 351 [1985]; see also Michaels v Park Shore Realty Corp., 55 AD3d 802 [2008]; Lillis v Wessolock, 50 AD3d 969 [2008]). Since, in support of his motion, plaintiff failed to provide evidence from any witness who had observed indicia of disease in the tree prior to the fall of the limb, we conclude that plaintiff failed to make out a prima facie case for summary judgment, and, consequently, that plaintiff's motion was properly denied, regardless of the sufficiency of the opposition (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Ortega v [*2]Liberty Holdings, LLC, 111 AD3d 904, 905 [2013]).

We reach no other issue.

Accordingly, the order, insofar as appealed from, is affirmed.

Nicolai, P.J., Iannacci and Tolbert, JJ., concur.
Decision Date: March 17, 2014