Opinion
9734/04.
Decided on February 16, 2007.
This is an action by the plaintiffs CHRISTOPHER BRIGHT and LAKEYSHA AGUGBO, hereinafter referred to as "MR. BRIGHT" and "MS. AGUGBO", respectively, to recover money damages for injuries allegedly sustained by the plaintiffs when on September 18, 2003, a tree limb fell through the windshield of the vehicle they were driving. The incident allegedly occurred at approximately four o'clock p.m. in front of 81 Bayview Avenue, Village of Great Neck Estates, NY Plaintiffs testified that they, when the incident occurred, were driving in a storm or hurricane (see Exhibit E, pgs. 77-78 annexed to THE COUNTY OF NASSAU's cross-motion). Defendant COUNTY OF NASSAU, hereinafter referred to as "THE COUNTY", has admitted it owned the tree in question and was responsible for its maintenance. Plaintiffs, in their cross-motion to voluntarily discontinue their action against THE VILLAGE OF GREAT NECK, hereinafter referred to as "THE VILLAGE", readily admit the tree in question is owned, maintained, and controlled by THE COUNTY (see the affirmation of Andrew L. Spitz, ¶ 3, annexed to plaintiffs' cross motion). The plaintiffs appear annoyed with the fact that THE VILLAGE also seeks summary relief based on the fact that it, THE VILLAGE, allegedly did not receive written notice. It is a moot point. Whether THE VILLAGE received written notice (not required by case law that will be discussed, infra) of a tree that THE COUNTY readily admits is the property of THE COUNTY is of no moment. From the record herein, THE VILLAGE's Summary Judgment request must be granted. The Court does not see the purpose of plaintiffs' conditional discontinuance request, i.e., the action be discontinued but not on the "notice" issue.
While General Municipal Law § 50-e(4) provides that nothing shall be deemed to dispense with the requirement of notice of the defective, unsafe, dangerous or obstructive condition of any street, highway, bridge, culvert, sidewalk or crosswalk, see Walker v Town of Hempstead, 84 NY2d 360, a municipality's notice requirement cannot apply to the defective or unsafe condition of a tree since to do so is beyond the scope of General Municipal Law § 50-e(4), see Newman v Glens Falls, 256 AD2d 1012.
A municipality cannot impose a prior written notice requirement for a defective condition of a tree, see Hughes v City of Niagara Falls, 225 AD2d 1059. The prior written notice statutes refer to actual physical defects in the surface of a street or sidewalk, see Doremus v Inc. Village of Lynbrook, 18 NY2d 362.
A municipality's duty to maintain its roadways in a reasonably safe condition encompasses those trees, adjacent to the roads, which could reasonably be expected to pose a danger to travelers; liability will not attach unless the municipality has actual or constructive notice of a dangerous condition posed by such trees, see Collado v Inc. Village of Freeport, 6 AD3d 378; Asnip v State, 300 AD2d 238; Leach v Town of Yorktown, 251 AD2d 630; and thereafter failed to take reasonable measures to correct the condition, see Fowle v State, 187 AD2d 698.
While liability may be imposed on a county, even in the absence of prior notice, for dangerous highway conditions for which the county had constructive notice, evidence must be presented that the dangerous condition was present on the roadway for a sufficient length of time prior to the accident to permit the county employees to discover and remedy the dangerous condition, see Goldburt v County of Nassau, 307 AD2d 1019; see also Lesser v MBSTA, 157 AD2d 352, aff'd. sub non, Fishman v MBSTA, 79 NY2d 1031.
A municipality is on notice to make a close inspection of a tree adjacent to the roadway when it is determined that the tree is hanging precariously over the roadway or leaning precariously toward the roadway, see Quog v Town of Brookhaven, 273 AD2d 287.
Where there is no evidence that the tree trunk showed any visible outward signs of decay prior to the accident, it cannot be said that the municipality had constructive notice of the defect, see Leach v Town of Yorktown, 251 AD2d 630.
The testimony of Michael Bogart, hereinafter referred to as "Mr. Bogart", THE VILLAGE's code enforcement officer, public safety officer and arborist, indicated he received on June 19, 2000, a phone complaint about a tree in front of 81 Bayview Avenue (see Exhibit L, pg. 1f3-14, Exhibit M annexed to THE COUNTY's cross-motion). Mr. Bogart contacted one Larry Borga, hereinafter referred to as "Mr. Borga", and both Mr. Bogart and Mr. Borga both looked at the tree. Both were "comfortable" with the tree and found no dangerous defects (see Exhibit L, pg. 17 annexed to THE COUNTY's cross-motion).
Robert Davis, hereinafter referred to as "Mr. Davis", a County superintendent of Highways, testified that the tree from which the limb fell hitting plaintiffs' vehicle was removed at the request of THE VILLAGE police chief since a storm/hurricane was going on and the chief felt there could be more damage (see Exhibit H, pg. 21 annexed to THE COUNTY `s cross-motion). Mr. Davis testified that in the Great Neck Estates area (the area where the herein incident occurred), the trees were visibly inspected by a foreman who drove in the area (see Exhibit N, pg. 35-38 annexed to THE COUNTY's motion). Mr. Davis did not think the tree in question had to be removed (Exhibit N, p. 22 annexed to THE COUNTY's cross-motion).
Plaintiffs have offered the Affidavit of Eugene B. Kalin, hereinafter referred to as "Mr. Kalin", dated March 24, 2004 (see Exhibit A annexed to the plaintiffs' affirmation in opposition). Mr. Kalin stated the tree in front of 81 Bayview venue was "leaning somewhat" he thought precariously. Mr. Kalin a few years ago told tree cutters from LIPA or THE VILLAGE that the tree was leaning. The cutters told Mr. Kalin the tree was healthy, and cutters came every year to prune the tree.
A municipality does not have constructive notice of a defective condition simply because a tree is leaning, see Quog v Town of Brookhaven, supra.
Where an inspection is made by a person on foot and up close, a failure to observe objective signs of disease cannot be excused if the signs are readily discoverable, see Harris v Village of East Hills, 41 NY2d 446.
There is no doubt that exterior signs of decay can indicate that a tree presents a hazard to pedestrians and motorists.
If there is no evidence that a tree showed any visible, outward signs of decay prior to the accident, a Court could not conclude that a municipality had constructive notice of the condition of the tree prior to the accident, see Leach v Town of Yorktown, supra.
Here, the record contains conflicting evidence concerning whether the tree was in defective condition and what notice County had, if any, of some indication of same.
Here, there are issues of fact as to whether the County's inspection procedures were reasonable or departed from the standard of reasonable care, see Harris v Village of East Hills, 41 NY2d 446. Is an inspection procedure that involves viewing trees while driving past the trees reasonable?, see Fowle v State of New York, supra.
A procedure of inspecting trees from a patrol car is not necessarily unreasonable, see Harris v Village of East Hills, supra.
Genuine issues of fact exist as to whether a tree was in defective condition at the time of inspection conducted by the municipality employee, whether the municipality had notice of or should have had notice of the defective condition, and whether the municipality was negligent in not taking remedial action prior to the incident.
As to County's cross-motion on the issue of serious injury, THE COUNTY relies on Delosovic v City of New York, 143 Misc 2d 801, aff'd. 17 AD2d 407, app den. 79 NY2d 751, for its position that a "serious injury" claim may be made by THE COUNTY. The Court, on examining the case, must disagree. The case involved the injury to a mother and the death of her two children. All three were hit by a truck while the mother and children were crossing a street. The City's liability was predicated on the "walk"- "don't walk" signals, i.e., the amount of time needed by a person at an average rate of speed to cross the street. The "no-fault" issue went to whether or not a person who sustains only mental injuries from witnessing the death of her two children. The case did not hold the City was a "covered person" for serious injury purposes.
THE COUNTY, for "serious injury" purposes, is not a "covered person", see Chacha v Clement , 31 AD3d 596 ; Lee v Piers , 11 AD3d 257 , since THE COUNTY was not, in the context of the incident, an owner, operator or occupant of a motor vehicle which has, in effect, required financial security. THE COUNTY's "serious injury" position is not viable.
As to THE COUNTY's request to amend its Answer to include offset against THE VILLAGE, the request must be denied. While motions for leave to amend pleadings are liberally granted in the absence of prejudice or surprise, see Leszczynski v Kelly McGlynn, 281 AD2d 519, leave will be denied when the proposed amendment is palpably insufficient as a matter of law or is totally devoid of merit, see Breco Environmental Contractors, Inc. v Town of Smithtown, 307 AD2d 330. THE COUNTY's claim of set-off as to Village is not established by the record. It is uncontroverted that the tree/tree limb involved was a tree owned and maintained by THE COUNTY. Also, THE COUNTY relied on its own "drive by" inspection procedure. The record is devoid of any liability on THE VILLAGE's part. THE COUNTY's allegation of off-set as against THE VILLAGE is without merit.
Finally, plaintiffs seek sanctions against THE COUNTY for the destruction of the tree and/or tree limb before plaintiffs' Counsel and/or expert could view same to determine if the tree was indeed in some state of decay.
Where a party destroys key physical evidence such that its opponents are prejudicially bereft of appropriate means to confront a claim with incisive evidence, the spoliator may be punished by the striking of its pleadings, see New York Central Mutual Fire Insurance Co. v Turnerson's Electric, Inc., 380 AD2d 652.
The Court has broad discretion in determining what, if any, sanctions should be imposed for the spoliation of evidence, see Iannucci v Rose , 8 AD3d 437 .
Sanctions of a party for spoliation of evidence was not warranted in an action to recover for property damage absent a showing that the acts that created the spoliation was an intentional attempt to hide or destroy evidence, or was a negligent destruction of evidence that the party had a duty to preserve, see Weiss v Industrial Enterprises, Ltd., 7 AD3d 518.
There is nothing in the record to indicate destruction of the tree was an intentional attempt to hide or destroy evidence, see Popfinger v Terminix International Company Limited Partnership, 251 AD2d 564.
There are several sources that can be used to provide the condition of the tree at the time of the accident, including but not limited to the rescue people who responded to the accident scene, the Village Chief of Police who insisted the tree be taken down, various photographs taken of the accident scene, and expert input.
Thus, the record reflects that there is, basically, a vast quantity of potential testimony and evidence available to the plaintiffs such that the act of taking down the tree did not deprive plaintiffs of the means to prosecute the action, see Favish v Tepler, 294 AD2d 396.
In conclusion, the plaintiff failed to show that the defendants acted intentionally or in bad faith in discarding evidence, or that the plaintiffs were, from an objective point of view, prejudiced by the destruction of evidence, see Knightner v Custom Window and Door Products, Inc., 289 AD2d 455.
The defendants should not suffer sanctions on the basis of common law doctrine of spoliation of evidence since it does not appear that the plaintiff will be unable to put forth a case without the original tree, see Tommy Hilfiger USA, Inc. v Commonwealth Trucking, Inc., 300 AD2d 58; Longo v Armor Elevator Co., Inc., 278 AD2d 127, and THE COUNTY has not otherwise gained an unfair advantage as the result of the destruction of the tree, see Tawedros v St. Vincent's Hospital of New York, 281 AD2d 184.
The plaintiffs' claim that they will be prejudiced by the destruction of the tree is not supported by the record.
Here, the imposition of sanctions would be inappropriate.
Therefore, it is hereby
ORDERED, that Motion Sequence No. 7 by THE VILLAGE for Summary Judgment as to the plaintiffs' Complaint is GRANTED; Notice of Cross-Motion #8 of plaintiffs, MR. BRIGHT and MS. AGUGBO, to voluntarily discontinue their action against THE VILLAGE is DENIED AS MOOT. That branch of Notice of Cross-Motion Sequence #9 by co-defendant THE COUNTY for Summary Judgment on the issues of lack of notice and serious injury is DENIED; that branch of THE COUNTY's alternate relief, Notice of Cross-Motion Sequence #9 to amend its Answer to allege set-off as against THE VILLAGE, is DENIED.
This constitutes the DECISION and ORDER of this Court.