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This case has language that shows that NY law would favor Irish -
]2007 NY Slip Op 50034(U)
PREMIUM POINT PARK ASSOCIATION, Plaintiff,
v.
RONALD LANZA, Defendant.
CC-2316-2006.
New Rochelle City Court.
Decided January 8, 2007.
EILEEN M. O'ROURKE, ESQ., New Rochelle, NY, Attorney for Plaintiff.
DONALD S. MAZIN, ESQ., Larchmont, NY, Attorney for Defendant.
JOHN P. COLANGELO, J.
This is a Small/Commercial Claims action brought by Plaintiff Premium Point Park Association ("Plaintiff" or the "Association") against Defendant Ronald Lanza ("Lanza" or "Defendant") to recover for expenses incurred in removing debris from a tree that fell from Plaintiff's land onto Defendant's property which was then "returned" to Plaintiff's property by Defendant.Defendant interposed a counterclaim for, in essence, damages to his property caused by the fallen tree (the "Tree").
The case was tried by the Court on September 26, 2006. Plaintiff called as its witnesses Lynn Honeysett and Linda Fosina, the Co-Presidents of the Association's Board of Directors, and Defendant testified as his sole witness. Documentary evidence was also introduced which included, most notably, photographs of the fallen Tree. Upon review of the testimony, the documentary evidence and the briefs submitted by the parties, the Court makes the following findings of fact and conclusions. For reasons that will soon become apparent, the Court will first address the issue of Defendant's Counterclaim.
FINDINGS OF FACT AND CONCLUSIONS
Defendant's Counterclaim for Damage to his Property and Related Damages Caused by the Fallen Tree
On January 18, 2006, in the midst of a violent winter storm, a tree fell in New Rochelle. It fell from the property of the Premium Point Park Association, an association of local home owners, including Defendant Lanza, onto Defendant's property, damaging his deck and leaving debris in his yard. There followed a period of finger pointing, during which each side sought to hold the other responsible for the damage caused to Defendant's house and property, and for the cost of cleaning up the Tree remains then in Defendant's yard. Ultimately, Defendant reported the incident to his insurance company which, he testified, fully reimbursed him for his loss, minus a $1,000.00 deductible. Significantly, as Defendant testified, the insurance proceeds specifically included $1,500.00 for removal of the Tree debris from Defendant's land.
What brought the parties to court, however, was not, as might be expected, Defendant's attempt to recover his deductible, although Defendant has asserted a counterclaim for just that. Instead, what sparked this action was Defendant's decision, perhaps made in fit of pique, to have the Tree debris thrown not into a dumpster headed for a land fill, but onto Plaintiff's property. Plaintiff in turn had the debris properly removed and later initiated this Small Claims action to seek recovery of the expense it incurred in so doing. Defendant counterclaimed for, in essence, his insurance deductible and for money damages to compensate him for lost time from his hair care business.
Plaintiff submitted a trial memorandum of law; Defendant submitted a post-trial memorandum to which Plaintiff filed a reply. The central and determinative issue in the case is clear and easily stated: which property owner bears responsibility for damage caused by a tree falling from one property onto another the owner of the property from which the tree fell, or the owner of the adjacent land on which the tree fell?
As it turns out, the law in this area is clear and long standing: absent actual or constructive notice of a tree's disease or defect, the tree's owner is not responsible for damage caused when his or her tree falls onto an adjacent property due to wind, storm or other natural causes. No less an authority than the New York Court of Appeals so held over twenty years ago Ivancic v. Olmstead, 66 NY2d 349 (1985), on facts similar to those present here. In Ivancic, the Court of Appeals affirmed the Appellate Division's dismissal of a complaint in which plaintiff sought to "to recover for injuries sustained when an overhanging limb from a neighbor's maple tree fell and struck him", because Plaintiff had presented no competent evidence that defendant had actual or constructive notice of the alleged defective condition of the tree before it fell — the absolute prerequisite for establishing tree owner liability for negligence. Id. at 350. As the court held:
"Considering first the negligence cause of action, it is established that no liabilityattaches to a landowner whose tree falls outside of his premises and injures another unlessthere exists actual or constructive knowledge of the defective condition of the tree. (Harrisv. Village of East Hills, 41 NY2d 446, 449; Restatement [Second] of Torts § 363; Prosserand Keeton, Torts, at 390 [5th ed]).
Inasmuch as plaintiff makes no claim that defendant had actual knowledge of thedefective nature of the tree, it is necessary to consider whether there was sufficientcompetent evidence for a jury to conclude that defendant had constructive notice. Weconclude, as did the Appellate Division, that plaintiff offered no competent evidence fromwhich it could be properly found that defendant had constructive notice of the allegeddefective condition of the tree. Not one of the witnesses who had observed the tree prior tothe fall of the limb testified as to observing so much as a withering or dead leaf, barren branch, discoloration, or any of the other indicia of disease which would alert an observer tothe possibility that the tree or one of its branches was decayed or defective."
Id. at 350-351. See, e.g.., Harris v. Village of East Hills, 41 NY2d 446 (1977); Lahowin v. Ganley, 265 AD2d 530 (2d Dept. 1999). The burden is on the party seeking recompense from the tree's owner to prove that the owner had actual or constructive notice of the tree's defective condition prior to the date of the accident. Ivancic v. Olmstead, 66 NY2d 349, (1985).
Both parties herein essentially agree that these are the operative legal principles. The parties disagree, however, on the issue of whether Plaintiff in fact had actual or constructive notice that the Tree was diseased or defective before it fell.In support of his contention that Plaintiff had such notice, Defendant offers solely a post facto view of the event. Defendant's only witness — himself — owns but leases out his house and property, and admitted at trial that he had not set foot there for approximately two years before the incident at issue. Neither he nor his tenant ever complained to Plaintiff about the Tree, or even mentioned the Tree to the Association. The only witnesses who testified concerning any observation of the Tree before it fell — Plaintiff's witnesses Ms. Honeysett and Ms. Fosina — stated that, to their observation, the Tree appeared to be in good health. Clearly, Defendant failed to establish actual notice of the Tree's defective or diseased condition.
In support of his contention that Plaintiff had constructive notice — in other words, should have been aware of the Tree's ill health prior to its fall — Defendant relies upon photographs of what was left of the Tree taken after its demise which do show cracks and internal rot. However, the cracks may well have been caused by the Tree's fall itself — a conclusion buttressed by the fact that no complaints by Defendant, his tenant, or any other member of the Association who saw the Tree were ever registered. Moreover, the Tree's rot, being internal, was apparently not visible by external inspection. Indeed, the witnesses called by Plaintiff who had seen the Tree before it fell all confirmed that it looked like a healthy tree — testimony not directly contradicted by Defendant.
The law does not require a property owner to be clairvoyant, nor does it impose some affirmative obligation of inspection — as Defendant contends — absent the actual or constructive notice of a condition that would warrant such an inspection. As the Court of Appeals held in Ivancic, supra, in order to establish constructive notice of a tree's defect, there must be "readily observable" evidence of decay:
"At least as to adjoining landowners, the concept of constructive notice with respect toliability for falling trees is that there is no duty to consistently and constantly check all trees fornonvisible decay. Rather, the manifestation of said decay must be readily observable in orderto require a landowner to take reasonable steps to prevent harm. (See, Berkshire Mut. Fire Ins.Co. v. State of New York, 9 AD2d 555). The testimony of Plaintiff's expert provides noevidence from which the jury could conclude that defendant should reasonably have realizedthat a potentially dangerous condition existed. Plaintiff's expert never saw the tree until themorning of the trial when all that remained of the tree was an eight-foot stump."
Ivancic, supra, at 351. (Emphasis supplied).
Similarly, Lahowin v. Ganley, 265 AD2d 530 (2d Dept. 1999), the court reversed the lower court's denial of defendant's summary judgment motion in a case where plaintiff's driver was allegedly injured "when a tree on the defendant's property blew over and fell onto the car that she was operating." As the court held, the absence of a "readily observable manifestation of [tree] decay" doomed plaintiff's effort to impart constructive notice of a defect to the tree's owner:
"The plaintiff Joan Lahowin was injured when a tree on the defendants' property blewover and fell onto the car that she was operating. In support of their motion for summaryjudgment, the defendants made a prima facie showing that there was no readily-observablemanifestation of decay, and thus that they could not be charged with either actual orconstructive notice of the defective condition of the tree. Without such notice, there can be noliability".
Id.
This principle is consistent with a long line of cases holding that in order to establish constructive notice of a defect, a plaintiff must prove more than the possibility of a mere "general awareness" by defendant of the condition; the defect must be "visible and apparent."
Gordon v. American Museum of Natural History, 67 NY2d 836, 837 (1986) ("To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it"); Piaquadio v. Paine Realty Corp.., 84 NY2d 967 (1994); Rapino v. City of New York, 299 AD2d 470 (2d Dept. 2002).
In the instant case, Defendant even failed to show that Plaintiff had a "general awareness" of the Tree's condition, much less that the disease was "readily observable", in the words of the Ivancic and Lahowin courts, or "visible and apparent" as the Court required in Gordon. Thus, Defendant failed to sustain his burden of proving that notice of the Tree's diseased or defective condition, actual or constructive, was present here. The Tree was not obviously rotten or diseased, and Defendant did not show that its stressed state became apparent until after it fell.Accordingly, Defendant's counterclaim fails and is dismissed.
Plaintiff's Claim for Damages Incurred in Removing Debris from the Tree
The Tree fell onto Defendant's property on January 18, 2006. As Defendant testified, he thereafter submitted a claim to his insurance carrier and was reimbursed for expenses, except for the amount of his insurance deductible. His insurance proceeds included $1,500.00 to pay for removal of the Tree from his property. As Defendant testified, rather than remove the Tree debris from the area, Defendant chose to use the insurance proceeds to hire his son and his son's companions to dump the debris back onto Plaintiff's property. It is fair to say that had Defendant used that portion of the insurance proceeds to put the debris where it belonged — in the trash heap — the parties would never have been before this court, for it is the cost to remove the Tree parts from the Association's land for which the Association is seeking compensation here.Defendant's response at trial to the question of why he had chosen to dump the Tree debris onto Plaintiff's land — "because it was their tree" — misses the point. Since the Association did not have actual or constructive notice of the Tree's disease or defect before it fell, once it fell onto Defendant's land it was his Tree debris to deal with, not Plaintiffs. By throwing the Tree remnants onto Plaintiff's property, Defendant became, in effect, a trespasser and the onus was on him to properly dispose of the fallen tree.
Plaintiff did not introduce into evidence a bill for the removal of the Tree remains that Defendant had thrown on its land. However, Plaintiff's co-president Fosina testified that the cost was $1,000.00, and Defendant testified that he paid his son and friends $1,500.00 to dump the Tree debris on Plaintiff's land. Accordingly, particularly in view of the fact that this is a Small/Commercial Claims case in which evidentiary standards are relaxed and in which the Court is charged with the responsibility of doing "substantial justice", (see UCCA § 1804, 1805-A), a quantum merit recovery to Plaintiff in the amount of $1,000.00 is in order.
Accordingly, Defendant's counterclaim is dismissed and Plaintiff is awarded a judgment in the amount of $1,000.00, each party to bear their own costs. Plaintiff is directed to submit judgment on notice.
The foregoing constitutes the Decision and Order of this Court. |
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