Opinion
2623-09.
Decided June 14, 2011.
The following papers and the attachments and exhibits thereto have been read on this motion:
Notice of Motion 1
Notice of Cross Motion 2
Affirmation in Opposition 3
Affirmation in Opposition 4
Affidavit in Opposition 5
Reply Affirmation 6
Reply Affirmation 7
Defendants Jason Petoske ("Petoske") and The Town of Oyster Bay ("Town") move and cross-move, respectively, for an order pursuant to CPLR 3212 granting them summary judgment dismissing the complaint and all cross claims asserted against them. For the reasons that follow, the motion and cross motion are granted.
On February 1, 2008, Plaintiff Bessie L. Lowe was driving her car southbound on Clocks Boulevard in Massapequa when two branches fell from a tree and went through the windshield causing her to sustain personal injuries. According to the complaint, the tree was located "on the sidewalk of the combined property of 711 Clocks Boulevard and 50 Elizabeth Street" on the "grassy area between the roadway and sidewalk" adjacent to a "vacant lot", approximately a block-and-a-half from the Plaintiff's house (Ex. "B" to Town Cross Motion at ¶ 15; Ex. "G" to Petoske Motion at p. 19).
The complaint also alleged that Defendant David Walker was in "possession and control" of 50 Elizabeth Street, Petoske was "in possession and control" of 711 Clocks Boulevard, and the Town was "in possession and control of the areas located in front of the combined properties of 711 Clocks Boulevard and 50 Elizabeth Street, in Massapequa, New York" (Ex. "B" to Town Cross Motion at ¶¶ 11-13).
In an order dated February 8, 2010, the court (McCarty, J.) granted a default judgment against Walker. However, entry of judgment was "deferred pending trial of the action against the remaining defendants."
Petoske's Motion for Summary Judgment
In support of his motion for summary judgment, Petoske asserts that he did not own the property on which the tree was located and, thus, cannot be held liable for the Plaintiff's injuries that resulted from the falling tree branches. In support of his claim that he did not own the property, Petoske cites to his own deposition transcript wherein he testified that he did not own the subject property but instead owned property located at 711 Clocks Boulevard which was adjacent to a vacant lot (Ex. "I" at pp. 4, 6-10, 34-37). The tree was located between the curb and the sidewalk abutting the vacant lot on the corner of Clocks Boulevard and Elizabeth Street (Ex. "J" to Town Cross Motion at pp. 11-13).
Petoske's verified answer makes the same assertion (Ex. "C" to Petoske Motion).
Petoske also submitted a letter issued by the Town of Oyster Bay Department of Public Works and addressed to Ms. Mary Jenkins at 50 Elizabeth Street in Massapequa informing her that the Town "has determined that a sidewalk hazard exists at the above address [50 Elizabeth Street]" (Ex. "M" to Petoske Motion). The Town issued this letter after its inspection of the tree and area where the tree branches had fallen (Ex. "M" to Petoske Motion; Ex. "J" to Town Cross Motion at pp. 14-15).
Based on the aforementioned submissions, the address of the property abutting the subject tree was 50 Elizabeth Street and not 711 Clocks Boulevard. Petoske's submissions thus constitute prima facie evidence that he did not own or control the property on which the tree was located, and Petoske "cannot fairly be held accountable for injuries resulting from a hazard on the property'" ( Crawford v Forest Hills Gardens , 16 AD3d 540 [2d Dept 2005] [citations omitted]). The Plaintiff's unsubstantiated assertion that there is an issue of fact as to who owned the property where the tree was located is insufficient to rebut Petoske's entitlement to judgment as a matter of law.
Town's Cross Motion for Summary Judgment
The Town argues that it did not have actual or constructive notice of any defect in the tree prior to the accident and, thus, cannot be held liable. A municipality cannot be held liable for failing to maintain its roadways (or the trees adjacent thereto) unless it had actual or constructive notice of the dangerous condition ( Hilliard v Town of Greenburgh, 301 AD2d 572 [2d Dept 2003]). In support of its claim that it did not have actual notice, the Town submits the deposition testimony of Joseph Tricarico, the Deputy Commissioner of Highway of the Town of Oyster Bay Highway Department. Tricarico testified that a computer search of records for the previous five years revealed that the Town was not given any notice as to any issues relating to the subject tree or abutting sidewalk (Ex. "J" to Town Cross Motion at p. 12). Accordingly, the Town established that it did not have actual notice of any defective condition in the tree.
Regarding 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.' In cases involving liability for fallen trees, a manifestation of nonvisible decay must be readily observable in order to give rise to a duty to prevent harm" ( Ferrigno v County of Suffolk , 60 AD3d 726 , 727 [2d Dept 2009]). Here, the Town's submissions establish that it did not have constructive notice of any alleged defect or "decay" in the tree which caused the Plaintiff's injuries. Significantly, the Plaintiff testified at her 50-h hearing that prior to the accident she never saw any branches fall from the tree nor did she ever complain about the condition of the tree (Ex. "G" to Town Cross Motion at pp. 15, 19). Nearby landowner Petoske also testified that he never notified the Town "concerning any complaints dealing with that tree or concerning that tree"; is not aware of any complaints having been made by anyone else regarding the tree; and has "never observed any branches falling from this tree aside from twigs" (Ex. "I" to Town Cross Motion at pp. 15-16).
The Plaintiff's bare assertion that a "handyman" named "Archie" made a complaint to a unidentified town employee is insufficient to raise an issue of fact ( compare Ferrigno v County of Suffolk, 60 AD3d at 728, supra [where there was sufficient evidence that the manifestation of nonvisible decay was readily observable from the roadway which gave rise to the County's duty to take reasonable steps to prevent harm]).
Accordingly, it is hereby ordered that the motion of Jason Petoske and the cross motion of the Town of Oyster Bay, are granted, and the complaint and cross claims are dismissed insofar as asserted against them.
This constitutes the decision and order of the court.