Tyrrell v Kelly

[*1] Tyrrell v Kelly 2015 NY Slip Op 51898(U) Decided on December 18, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 18, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : TOLBERT, J.P., IANNACCI and CONNOLLY, JJ.
2014-866 OR C

Bryan Tyrrell and Donna Tyrrell, Respondents,

against

John Kelly and Shirley Kelly, Appellants.

Appeal from a judgment of the Justice Court of the Village of Maybrook, Orange County (William J. Schimpf, J.), dated April 8, 2014. The judgment, after a nonjury trial, awarded plaintiffs the principal sum of $2,006.67.

ORDERED that the judgment is reversed, without costs, and the action is dismissed.

In this small claims action, plaintiffs seek to recover the sum of $2,006.67, alleging that a branch from a tree owned and negligently maintained by defendants, their neighbors, fell on plaintiffs' driveway, causing damage to their vehicle. After a nonjury trial, the Justice Court awarded plaintiffs the principal sum of $2,006.67.

Upon a review of the record, we find that the judgment did not render substantial justice according to the rules and principles of substantive law (UJCA 1804, 1807).

It is undisputed that defendants owned the tree in question. In order to impose liability upon defendants, plaintiffs bore the burden of showing that defendants had either actual knowledge of the defective nature of the tree or constructive notice of the dangerous condition (see Ivancic v Olmstead, 66 NY2d 349 [1985]; Sleezer v Zap, 90 AD3d 1121 [2011]; Michaels v Park Shore Realty Corp., 55 AD3d 802 [2008]). The manifestation of any decay must be readily observable in order to require a landowner to take reasonable steps to prevent harm (see Ivancic v Olmstead, 66 NY2d 349; Lillis v Wessolock, 50 AD3d 969 [2008]). Although plaintiffs testified that branches had fallen from the tree prior to the incident in question, they failed to provide any evidence that the tree was unhealthy or that defendants had actual or constructive notice of any defects or decay in the tree prior to the incident (see Goldman v Severe, 31 Misc 3d 151[A], 2011 NY Slip Op 51124[U] [App term, 9th & 10th Jud Dists 2011]). Consequently, the judgment in favor of plaintiffs failed to render substantial justice between the parties according to the rules and principles of substantive law (UJCA 1804, 1807). Accordingly, the judgment is reversed and the action is dismissed.

Tolbert, J.P., Iannacci and Connolly, JJ., concur.

Decision Date: December 18, 2015