Jay v State of New York

[*1] Jay v State of New York 2022 NY Slip Op 22311 Decided on August 1, 2022 Court Of Claims Rivera, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on August 1, 2022
Court of Claims

Judith Jay AS THE EXECUTRIX OF THE ESTATE OF BARRY SHAPIRO, DECEASED, Claimant

against

The State of New York and THE NEW YORK STATE THRUWAY AUTHORITY, Defendants.



Claim No. 132173

Claimant's attorney:
SULLIVAN PAPAIN BLOCK McGRATH COFFINAS & CANNAVO, P.C.
By: Nicholas Papain, Esq.

Defendant's attorney:
HON. LETITIA JAMES
Attorney General for the State of New York
By: Albert Masry, Assistant Attorney General


Walter Rivera, J.

This claim arises out of a tragic fatal accident that occurred on March 2, 2018, at 4:25 p.m., when claimant's husband, Barry Shapiro, was driving an Audi sedan northbound on the New York State Thruway, during a nor'easter storm that was a mix of heavy rain, snow, ice and gusty winds (T:189, 195).[FN1] As the driver proceeded in the Town of Greenburgh, in the vicinity of milemarker 11.1, a black locust tree fell from the roadside area on the right side east of the thruway and struck the roof and the windshield of the car (T:24-25; Ex 10). The driver lost control and the car hit the guardrail (T:26-27). The driver sustained serious injuries which resulted in his death. The trial of this matter was bifurcated and this decision pertains solely to the issue of liability.

Claimant alleges that the New York State Thruway Authority (NYSTA) is liable for the decedent's death because the roadside tree posed a foreseeable hazard to motorists on the thruway and the NYSTA failed to properly inspect, maintain and remove the tree prior to the accident.[FN2] Specifically, claimant argues that the tree failed due to the shallow root system that is characteristic of a black locust tree along with the tree's approximate 70-foot height, top-heavy crown, and the tree's location in rocky soil on a steep hillside adjacent to the thruway. Claimant also argues that the NYSTA was on notice of the potential hazard posed by the tree, located within 30 to 40 feet from the thruway, because the tree had a noticeable lean towards the thruway and many other trees in close proximity to the subject tree had died and fallen during the three to five years prior to the accident. Accordingly, claimant maintains that the entire grove of black locust trees adjacent to the thruway, including the subject tree, should have been removed by the NYSTA years prior to the accident. Finally, claimant maintains that the weather was neither the sole cause nor an intervening cause of the tree's failure.

The NYSTA maintains that its drive-by inspections of the trees along the thruway were proper and indicated that the trees in the area were all aligned and naturally leaning towards the thruway because of the unobstructed sunlight. The NYSTA also maintains that the subject tree did not have a severe lean which would put the NYSTA on notice that the subject tree either posed a foreseeable danger or warranted a closer inspection on foot. Further, the NYSTA maintains that a closer inspection of the tree would not have revealed that the tree posed any foreseeable danger to motorists on the thruway because the tree was healthy and did not have any visible signs of decay or indications that the tree's stability was compromised. Additionally, the NYSTA argues that dead and fallen trees in the area of the subject tree are not probative without an established common cause of failure. The NYSTA disagrees with claimant's assessment that, due to the characteristics of black locust trees, the subject tree and all black locust trees in the area along the thruway warranted removal prior to the accident. In this vein, the NYSTA argues that the removal of all black locust trees in the area would be economically and ecologically irresponsible and would create a greater potential for the remaining trees to fall onto the thruway. Finally, the NYSTA maintains that an examination of the tree post-accident indicates the subject tree was healthy and had an established root system that suddenly and unpredictably failed due to the weather and the gusts of wind generated by the nor'easter which caused the major roots of the tree to snap at the base of the tree while the rest of the root system remained embedded in the soil.

It is well settled that the NYSTA has a duty to maintain its roadways in a reasonably safe condition and that duty extends to trees that border the roadways which could reasonably be expected to pose a danger to motorists using the roadways (see Harris v Village of E. Hills, 41 NY2d 446 [1977]; Collado v Incorporated Town and/or Vil. of Freeport, 6 AD3d 378 [2d Dept 2004]; Guido v State of New York, 248 AD2d 592 [2d Dept 1998]). "Liability, however, will not attach unless the [NYSTA] had actual or constructive notice of a dangerous condition posed by such a roadside tree" (Guido, 248 AD2d at 592).

Preliminarily, it is noted that there is no allegation that the NYSTA had actual notice of a danger posed by the subject tree and there was no evidence of any pre-accident complaints made to the NYSTA about the tree (T:312).

With regard to the NYSTA's inspections and maintenance of the roadside trees, testimony was elicited from several witnesses. Jerome Crearer, a NYSTA Maintenance Supervisor, testified that he supervised the unit that maintained nearly 50 miles of the thruway, including the accident site. Crearer patrolled the thruway weekly by doing drive-by inspections for potential hazards such as a rotting, infected, dying or damaged roadside trees. Edward J. Terry, Jr., a NYSTA Maintenance Specialist for more than 30 years before he retired, testified that he spent the last 16 to18 years of his employment leading the New York Division Tree Program.[FN3] Terry investigated complaints of dead or leaning trees and was responsible for maintaining the safety of the trees along the thruway in the area of the accident. Terry performed drive-by inspections along the thruway looking for anything that "stands out from the ordinary, such as a dead tree, a leaning tree . . . a tree with no bark on it, a tree with a lot of broken limbs that have fallen, a tree [*2]with no leaves" (T:68).[FN4] Terry explained that "those are visual telltales as far as something to look at, and it's noticeable" (id.).

Terry's drive-by inspections could initiate the need for a closer inspection on foot, depending upon what Terry had observed. When necessary, Terry would call NYSTA maintenance in the area to take a closer look at the tree on foot to determine if the tree needed to be trimmed or removed. The maintenance crew did not include an arborist and neither Terry nor Crearer was an arborist. Terry determined which trees needed to be addressed and tree invoices indicated that prior to the accident Terry had directed the removal of hundreds of trees along the thruway during the years of 2013 through 2017 (T:712, 715, 718-720, 761; Ex. G).

James Moran, an arborist and claimant's tree expert, opined that drive-by inspections are ineffective because you cannot see the root system or defects in the tree. He further opined that tree inspections should be done on foot by an arborist. Accordingly, based upon the NYSTA's practice of conducting initial drive-by inspections of the roadside trees and not using an arborist to do on-foot inspections of all the trees along the thruway, Moran opined that the NYSTA had not maintained the roadside trees "at all" (T:310).[FN5]

The NYSTA's expert, Theodore Kozlowski, a forester who worked for 35 years before retiring in 2019, had a different opinion as to the NYSTA's inspections and maintenance of the roadside trees along the thruway. In his position as a forester in Westchester County, Kozlowski was responsible for maintaining 18,000 acres of land and approximately 160 miles of Westchester County roadways in both directions, including approximately 14 million trees (T:546, 549-51, 554, 556-7). Based upon his extensive experience performing risk assessments of potentially hazardous trees on the Bronx River Parkway and Playland Parkway, Kozlowski noted that all roadside trees pose an inherent risk to the safety of the travelers of the roadway; however he explained that there are red flags which assist in identifying those trees which pose an unreasonable risk (T:549, 551-552, 554, 646-647). Those red flags are decay, disease, insect infestation, a severe lean, and human interference.

Kozlowski opined that, in his experience, inspectors were not, and need not be, arborists (T:551-552). Kozlowski explained that:

"[i]t's fairly simple to instruct highway workers on what to look for. It's not terribly scientific to look for the red flags. And that's really what we want our workers to do, is to identify these things and the[n] contact the appropriate people to make the final judgment on whether the tree should be removed or pruned or left alone " (T:694-695).

Kozlowski further testified that it was the standard practice to conduct initial assessments along a roadway by doing drive-by inspections at a very slow speed with flashers on the vehicle [*3](T:554-55, 557, 627). The drive-by inspection can then lead to a further inspection on foot (T:636). He conceded that a root system could not be observed in a drive-by inspection. However, if a tree had a noticeable lean, then an on-foot inspection focused on the root system would be conducted (T:558).

Upon consideration of the aforenoted testimony and assessing the weight to be accorded, the Court finds that claimant failed to establish by a preponderance of the credible evidence that the NYSTA was negligent in its maintenance of the roadside trees by not requiring that its inspectors be arborists and by performing initial drive-by inspections of the roadside trees for red flags before performing on-foot inspections where it was determined to be necessary (see Harris, 41 NY2d at 450 [Inspection of trees from a patrol car on the roadway was not unreasonable]).

Next, the Court will address claimant's contentions that, due to the shallow root system that is characteristics of a black locust tree along with the tree's approximate 70-foot height, top-heavy crown, the tree's location in rocky soil on a steep hillside located within 30 to 40 feet from the thruway, and the presence of fallen tress near the subject tree that had died three to five years prior to the accident, the NYSTA was on notice of the potential hazard that the tree would fall onto the thruway and therefore the tree and the entire grove of roadside black locust trees should have been removed by the NYSTA years prior to the accident. The Court will set forth the relevant portions of testimony as they pertain to each of claimant's contentions. The Court's ultimate finding will be set forth at the end of all the testimony to indicate that the Court has considered each contention both individually and in toto as a basis for the Court's determination.

In support of its position, claimant principally relies upon the testimony of her expert, James Moran. Moran opined that the entire grove of black locust trees adjacent to the thruway should have been removed three to five years prior to the accident even if none had failed because "an arborist, anybody who understood trees would've know[n] that these trees were going to fail" and a maintenance worker "never would know that. They're not qualified to inspect trees" (T:270-273, 359). Moran stated that his theory as to why the subject tree failed was based upon his "over 50 years" of experience and he would not expect a layperson to come up with the theory he advanced (T:350). Moran testified that black locust trees are known to have shallow root systems and that is "one of the reasons they fail quite often" (T:253). Additionally, Moran testified that black locust trees are invasive and can impede the growth of other natural trees that are otherwise more prevalent in an area. On cross-examination, Moran conceded that being an invasive species does not make a tree defective (T:321-322). The NYSTA's expert, Theodore Kozlowski, testified that while the invasive nature of black locust trees may cause an area to become "ecologically weak" due to the lack of diversity of trees, the invasive nature of the black locust tree does not make it a hazardous tree (T:563-564, 607, 672, 674, 677, 700).

As previously noted, the Court finds that the evidence did not establish that the NYSTA was negligent by not requiring its inspectors to be arborists, as supported by the testimony of Kozlowski. In further support of this Court's finding on that issue, the Court finds the testimony of NYSTA Maintenance Specialist Edward J. Terry, Jr. to be compelling. Specifically, when Terry was asked if he knew anything about the characteristics of black locust trees and their root systems, he responded that they probably have shallow root systems, but that his job "is not really to be concerned about the type of tree" (T:87). Terry explained that he is concerned about trees [*4]that pose visible signs of danger. Terry testified that his focus is on "the safety of the public, and that's why I address dead trees, leaning trees . . . if a tree is standing and it has green on it or whatever. As far as I'm concerned, they're alive, then they're not of my concern" (T:87-88).

Kozlowski testified that "[n]o tree is inherently shallow-rooted" and that the term shallow-rooted is a "misnomer" in this region because most of the root systems of all trees in this region are within the first 18 inches of the soil (T:575-576). Thus, according to Kozlowski, all trees are relatively shallow-rooted because of living in this region (T:575). Kozlowski also testified that "no tree has inherently poor root structures" and black locust trees do not have inherently poor root structures as evidenced by their thriving existence (T:566, 574-575). The Court makes note of the significant concessions made by Moran on cross-examination and the contrary opinions as testified to by Kozlowski. The Court's consideration of the aforenoted testimony resolves in favor of the NYSTA.

Next, Moran opined that the area of the subject tree had very poor rocky soil on rock ledges which caused the trees to have very shallow root systems and made them more apt to fail because their root systems could not anchor properly (T:253, 257-258). On cross-examination, however, Moran conceded that the subject tree was not growing on a rock ledge; it was growing in rocky soil and that countless trees grow in rocky soil (T:335-336). When asked if he was concerned about a black locust tree or a tree with a shallow root system on a steep hill, Terry testified that any tree on a steep hill is a problem because it prevents the roots from really getting embedded in the ground in order to stabilize the tree in a vertical position (T:88). According to Terry, the subject tree was growing in a rocky area; however Terry went on to testify that this was not of his concern (id.). Kozlowski opined that black locust trees are "very ubiquitous" in Westchester County and that all along the thruway and the major corridors in the tri-state region the soil is notoriously dry, rocky and nutrient-poor which is an advantage to black locust trees because they, unlike other trees, can manufacture nitrogen which is a limited nutrient in this type of soil (T:577, 563, 565). According to Kozlowski, a tree in such rocky soil is not a red flag, "that's what you see all along the parkways, all along the thruway" and the trees have established themselves because they can tolerate such conditions (T:577-578). The Court's consideration of the aforenoted testimony resolves in favor of the NYSTA.

Moran opined that the trees around the subject tree did not fail "because they had a sufficient root system" (T:259). Moran, however, did not explain how the surrounding trees had [a] sufficient root system that differed from the subject tree that failed or how an inspection could have revealed such distinction. Accordingly, the Court did not accord Moran's aforenoted testimony any weight.

Moran testified that the trees were all close together and therefore they did not develop proper root structures and were leaning towards the sunlight. He opined that there were several uprooted trees that had likely failed in the last three to five years prior to the accident that were laying on the ground near the subject tree and that this put the NYSTA on notice that "the whole area" had trees with a potential for failure (T:259, 266). On cross-examination, however, Moran acknowledged that it was not unusual to see fallen trees in an area after they had reached their lifespan (T:337, 347). Notably, Moran did not inventory the fallen trees nor indicate the reason they had fallen (T:337-340).

Terry testified that if an on-foot inspection revealed five to ten trees down in the area of a [*5]really leaning tree, he would "do nothing" and it would not raise any concerns about other trees in the area (T:87). Kozlowski also testified that it is not unusual to see fallen trees in a woodland and he explained that it is environmentally beneficial to leave fallen trees in place for the animals and the soil (T:559). According to Kozlowski, fallen trees are common and are not a red flag which warranted a further inspection of the subject tree (T:590). Kozlowski further opined that fallen trees did not indicate a problem with the subject tree because there was no relationship established between the trees regarding the cause of the fallen trees and the subject tree (T:593). The Court's consideration of the aforenoted testimony resolves in favor of the NYSTA.

Moran opined that all the trees in the area "are going to fail at some time and it's not going to be because of wind; it might just help it along" (T:260). Moran opined that the approximate 70-foot height of the tree with the added weight of the crown leaning towards the sunlight caused the shallow root system on a steep hill to fail and resulted in the tree falling onto the roadway. On cross-examination, however, Moran conceded that height alone does not make a tree defective as a 30-foot decayed tree would be defective but a healthy 70-foot tree would not be defective (T:334). Moran also conceded that a February 2016 Google photograph of the tree showed no abnormality in the crown of the subject tree. Additionally, Moran conceded that a tree growing on a hill does not make a tree hazardous (T:336).

Kozlowski opined that a tree's height and it's proximity to the thruway did not, without other factors present, pose a hazard simply because if the tree fell it would land on the roadway (T:648-649). Kozlowski also testified that a tree on a hill is "very common" in Westchester County and is not considered a red flag (T:557). The Court's consideration of the aforenoted testimony resolves in favor of the NYSTA.

Kozlowski testified that the area surrounding the subject tree consisted of approximately 30 percent black locust in "rocky, gravelly, loam soils" (T:561-562, 644). He opined that it would be "economically and ecologically irresponsible" to remove a grove of healthy black locust trees (T:607). He explained that removing thousands of roadside black locust trees would subject the area to erosion, rock failure and mudslides. Additionally, such removal would compromise other types of trees by increasing their exposure to storms and wind, thereby increasing the potential for more trees failing (T:608). Kozlowski also maintained that there was also no reason to single out the subject tree for removal prior to the accident because it was a healthy black locust tree (T:607, 694). The Court found the aforenoted testimony of Kozlowski to be compelling.

Upon the Court's consideration of each of claimant's aforenoted contentions, both individually and in toto, and upon the Court's assessment of the credibility and the weight to be accorded to the testimony presented, the Court makes the following findings. Claimant has failed to establish by a preponderance of the credible evidence that, due to the shallow root system that is characteristics of a black locust tree along with the tree's approximate 70-foot height, top-heavy crown, the tree's location in rocky soil on a steep hillside located within 30 to 40 feet from the thruway, and the presence of fallen tress near the subject tree that had died three to five years prior to the accident, the NYSTA was on notice of the potential hazard that the tree would fall onto the thruway and that therefore the tree and the entire grove of roadside black locust trees should have been removed by the NYSTA years prior to the accident.

Next, the Court will address claimant's contention that, prior to the accident, the NYSTA [*6]had constructive notice of a reasonably foreseeable danger that the subject tree would fall onto the thruway because the tree had a noticeable lean towards the thruway.

"In order to constitute constructive notice, a 'dangerous condition must have been visible and apparent and must have existed for a sufficient length of time prior to the accident to permit [the] defendant's employees to discover and remedy it' " (emphasis in original) (citations omitted) (Fowle v State of New York, 187 AD2d 698, 699 [2d Dept 1992]). Constructive notice is not established "simply because a tree is leaning" (Collado, 6 AD3d at 379). Rather, a tree must be "hanging precariously" over the roadway (Guido v State of New York, 248 AD2d 592 [2d Dept 1998]) or "leaning precariously toward the [roadway]" (Fowle, 187 AD2d at 699) to establish notice requiring a closer inspection of the tree.

A critical issue in the case at bar is whether the subject tree was noticeably leaning precariously toward the thruway prior to the accident so as to put the NYSTA on notice that the tree posed a reasonably foreseeable danger to motorists on the thruway.

Moran testified that the subject tree had a noticeable lean towards the sunlight and the roadway as did "all the trees" (T:279). Terry testified that it is not unusual for all the trees to be leaning towards the roadway because of the unobstructed sunlight and therefore a closer inspection would not be required. He explained that if all the trees were leaning towards the thruway in the same manner then it would not be an out of the ordinary noticeable condition, as contrasted to a tree with a noticeable lean toward the thruway. If Terry saw a "really leaning tree," he would stop his vehicle and get out of the car to perform an on-foot inspection to see why the tree was leaning, why the tree had not fallen, whether the tree was dead or alive, and to determine whether the tree would reach the roadway if it fell (T:77-78).[FN6]

Kozlowski reviewed a pre-accident 2016 Google image of the tree and the surrounding roadside trees and a post-accident photograph of what remained of the subject tree on April 13, 2018 and the surrounding roadside trees (Exs. F, 20). Kozlowski testified that images indicated to him that all the trees were aligned and that none of them were leaning "precipitously" over the thruway such that it would be a cause of concern (T:586-589, 644). Accordingly, Kozlowski opined that there was no indication that the subject tree had a severe lean that would prompt a further inspection. He testified that all trees grow towards the sunlight and these trees were "definitely not unusual" as they were naturally growing towards the roadway because of the unobstructed sunlight (T:645-646).

Kozlowski further explained that when trees near roadways naturally lean towards the roadway because of the sunlight, the root system "is compensating and providing the support so that it [the tree] can lean" (T:585, 645-646). Thus, Kozlowski opined that the trees leaning along the roadway are common and not necessarily hazardous. He explained that if they were all hazardous then they would be constantly falling and they are not (T:586).

On cross-examination, Kozlowski was asked if he was concerned that if the leaning trees fell that they would land on the roadway, he responded, "[t]hat is a fact of life on all roadways," if all the trees fell the majority of them would fall onto the roadway and that, in and of itself, is not necessarily a potential hazard (T:647). According to Kozlowski, if that was the standard for [*7]a potential hazard then "[e]very tree is a potential hazard. You have to go by reasonable risk" (T:647). He explained that:

"while those trees [depicted in Ex. 20] appear leaning and they look top-heavy and they are heading towards the Thruway, the root systems of those trees are compensating for the physical forces that are going against them to bring them over the Thruway by reinforcing and growing stronger roots, compression cells that make those trees stable. So even though a layperson would look at this and say my god, these trees are leaning, they're a hazard, no, they are not. They are a potential hazard. Every single tree in the universe is a potential hazard. No doubt about it. Those trees, based on this photograph that you're showing me [Ex. 20], are they a hazard, an unreasonable risk? No, they are not. If I had seen mounding or if I saw these trees in a situation where it definitely shows that the roots are failing, then that changes the scenario"(T:647-648).

Upon the Court's review of the photographs and due consideration of the aforenoted testimony and assessing the weight to be accorded, the Court finds that claimant has failed to establish by a preponderance of the credible evidence that the subject tree was leaning precariously toward the thruway prior to the accident. Accordingly, the Court finds that the NYSTA did not have constructive notice that prior to the accident the subject tree posed a reasonably foreseeable danger to the motorists on the thruway. The Second Department reached the same conclusion on similar facts in Fowle, 187 AD2d, where a double-leader tree, located 28 feet from the edge of the Saw Mill River Parkway on an eight to ten foot embankment, was plainly visible from the roadway. The Second Department held that:

"the trial evidence established that, from the parkway, the tree appeared to be healthy, notwithstanding its peculiar, although not unique, structure. Only a close inspection could have revealed that the core of the twin tulip tree was decayed, rotted, and infested with carpenter ants. However, the claimants failed to establish that the State's inspection procedures as to trees adjacent to the Saw Mill River Parkway — which included viewing the trees while driving past them, and looking for apparent defects (e.g., dead or decayed trees; trees leaning precariously toward the parkway; or storm-damaged or uprooted trees) — were unreasonable or departed from the standard of reasonable care"(id. at 699).

Moreover, even if a closer inspection of the subject tree had been performed by the NYSTA prior to the accident, claimant's own expert testified that a pre-accident inspection of the tree trunk and the root structure would not have indicated any abnormality with the tree (T:326 -330). Moran examined the trunk of the tree and all the portions of the tree that had been cut up after the accident. He testified that he "could find no decay whatsoever" in any portion of the tree or its trunk and he described the tree as "healthy" (T:256-257, 326-330). In viewing a photograph of the subject tree, Moran stated that "you can see that the trunk of the tree looks solid and had no defects in it" (T:292; Ex. 44).

Stephen Petrellese, an EMT who responded to the accident, described the subject tree as "a pretty healthy tree" (T:144). Petrellese stated that the tree "didn't appear to be . . . like an older tree . . . it wasn't like crumbling apart or anything like that" and Petrellese did not notice any rot or decay (id.).

Additionally, Kozlowski's inspection of the tree post-accident did not reveal any decay, disease, fungus or borer insect activity (T:572). He determined that the tree was approximately 55 years old and had a lifespan of approximately 100 years (T:578-579). Kozlowski noted that the tree had sprouts growing out of the trunk which indicated that the tree was alive when it fell (T:579-583; Ex. K). The roots of the tree were "very fibrous, very extensive" (T:573). Kozlowski testified that when mounding soil is present, which can develop over time as a result of a lean, it is an indication that the tree is starting to loosen and will fail over time (T:573-574, 653). Kozlowski testified that the subject tree had no mounding soil and the root system was "quite normal for a black locust tree" (T:573).

Based upon the aforenoted testimony, the Court finds that the credible evidence established that the tree was alive when it fell, was not rotted, decayed or otherwise diseased, and did not show any visible, outward signs of decay or mounding soil indicating that the tree was loosening over time. Accordingly, the Court finds that even if the NYSTA had done a closer inspection of the tree prior to the accident, the NYSTA would not have noticed that the tree posed a reasonably foreseeable danger to motorists on the thruway and, absent notice, the NYSTA cannot be held liable (see Ivancic v Olmstead, 66 NY2d 349, 351-352 [1985] [Even if the tree had been inspected, there was no evidence that an inspection would have given notice of any defective condition or potential danger]; Asnip v State of New York, 300 AD2d 328 [2d Dept 2002] [Where a tree toppled because of a failed root system, the Court held that the State did not have notice of a defect with the tree because, even if a closer inspection of the tree had been done prior to the accident, the fallen tree was alive, not rotted, decayed, or otherwise diseased]; Quog v Town of Brookhaven, 273 AD2d 287, 288[2d Dept 2000] [The inspector's view of the fallen tree revealed that the tree did not appear to be rotten; thus the Court held that the municipality could not be charged with constructive notice of a defect in the tree because, even if a closer inspection of the tree had been made prior to the accident, such inspection would not have revealed any defect regarding the tree or the "cause of the tree falling, i.e., the lack of an adequate root system"]; Leach v Town of Yorktown, 251 AD2d 630, 631 [2d Dept 1998] [There was no evidence that the tree trunk showed any visible, outward signs of decay prior to the accident; therefore defendant did not have constructive notice of the hollow and dangerous condition of the tree prior to the accident]; Berkshire Mut. Fire Ins. Co. v State of New York, 9 AD2d 555, 555-556 [3d Dept 1959] [There was no evidence of actual or constructive notice of the condition of the tree prior to the accident where a limb fell during rain and wind where the tree was alive and "an observation of the tree would not indicate that it was in a dangerous condition"]).

Finally, the Court will address claimant's contention that the weather was neither the sole cause nor an intervening cause of the tree's failure. In that regard, the Court carefully considered all the evidence presented and found the testimony of the NYSTA's expert to be most compelling. Kozlowski explained that there were four major storms with extremely cold temperatures in January 2018 and then, in February 2018, the region experienced extremely warm weather with a record breaking temperature of 77 degrees in White Plains. According to Kozlowski, theses weather extremes likely thawed the upper portion of the ground while the lower portion remained frozen. Then, Kozlowski noted , the nor-easter of March 1 through 3, 2018 produced heavy rain, wet snow, and wind gusts exceeding 47 mph, which he opined had [*8]caused 60 trees to fail on March 2, 2018 (T:597-600, 684). Kozlowski explained that a strong gust of wind, "no matter how long in duration" can take down trees (T:600). He further stated that the rain, sleet and snow can magnify the wind and the sporadic wind can be funneled through the forest with greater force, causing some trees to fail (T:604). Kozlowski stated, "I feel that the combination of strong gusts of wind, the added punch of pelting rain and then snow created a force that made the tree fail, as well as other trees in the region" (T:600). Kozlowski testified that the major roots had snapped very close to the main stem which indicated that the tree "suddenly snapped . . . it wasn't an event that was happening over time, it was a sudden event" and the remaining roots were embedded in the ground (T:573-574, 653). The major roots were "broken at the base, which indicates that the this tree received a tremendous force that overwhelmed those roots, and they broke in half, they snapped" (T:697-698; Ex. 40). Significantly, Kozlowski concluded that the sole reason the subject tree failed was due to the nor'easter and not from any noticeable signs of problems with the tree (T:605-606, 694). He testified that the failure of the tree was unfortunate and unpredictable (T:694). He explained that the tree "gave way due to the forces of nature, not because someone's misinterpretation of investigation" (T:698). "Unfortunately, there is really no way to tell if a tree is going to withstand a nor'easter if it's perfectly healthy. And I do not believe that this tree was compromised. And therefore, I do not believe that if I was standing next to it the day before the event I would have been able to prevent this accident" (T:607). The Court finds the testimony of the NYSTA's expert to be most compelling. Accordingly, in addition to the Court's finding that the NYSTA cannot be held liable because the NYSTA did not have either actual or constructive notice that the tree posed a reasonably foreseeable danger to motorists on the thruway, the Court also finds that the weather was a superseding, intervening cause of the tree's failure and thus the accident was not attributable to any negligence on the part of the NYSTA (see Derdiarian v Felix Contr. Corp. 51 NY2d 308, 315 [1980] [An intervening unforeseeable act, independent from defendant's conduct, may be a superseding act which breaks any causal nexus between defendant's conduct and the accident]; Guzzo v Mercy Med. Ctr., 250 AD2d 731 [2d Dept 1998] [Plaintiff's actions constituted a superseding, intervening cause of the accident thus relieving defendants of any liability [Mochen v State of New York, 57 AD2d 719, 720] [4th Dept 1977] "Negligence cannot be presumed from the mere happening of an accident ...Negligence must be proven"]). In sum, there is no basis for holding the NYSTA liable for this unforeseeable and unfortunate accident that took the life of claimant's husband.

Accordingly, the motion to dismiss the claim made by the NYSTA at the conclusion of the trial, upon which decision was reserved, is now GRANTED and all motions made heretofore which were not ruled upon are DENIED.

LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 132173.

Footnotes

Footnote 1:References to the trial transcript are preceded by the letter "T."

Footnote 2:At trial, the Court granted the State's unopposed motion to dismiss the claim as against the State on the ground that the State is not a proper party defendant because the State was neither the owner of the roadway nor charged with maintenance of the area (T:734-735).

Footnote 3:Exhibits 1through 3 were received in evidence for the limited purpose of depicting the area of trees within the jurisdiction of the Tree Program (T:70).

Footnote 4:Terry's drive-by inspections were not limited to observations regarding trees; observations were also made of any other potential safety issues including drainage and guiderails (T:68).

Footnote 5:It is noted that Moran also testified that Ex. 44 depicted a tree that had been cut with a chainsaw prior to the accident, which indicated to Moran that "[a]t some point . . . there was somebody in there doing maintenance work" (T:293).

Footnote 6:Terry testified that Exhibit 3, a photograph taken post accident of a different tree, depicted a "really leaning tree" (T:74-77).