Opinion
2019–07048 Index No. 5375/17
12-09-2020
Stephanie POZZANI, appellant, v. VILLAGE OF SOUTH BLOOMING GROVE, respondent.
Neimark & Neimark LLP, New City, N.Y. (Ira H. Lapp of counsel), for appellant. Drake Loeb PLLC, New Windsor, N.Y. (Nicholas A. Pascale of counsel), for respondent.
Neimark & Neimark LLP, New City, N.Y. (Ira H. Lapp of counsel), for appellant.
Drake Loeb PLLC, New Windsor, N.Y. (Nicholas A. Pascale of counsel), for respondent.
ALAN D. SCHEINKMAN, P.J., MARK C. DILLON, COLLEEN D. DUFFY, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Orange County (Maria S. Vazquez–Doles, J.), dated May 1, 2019. The judgment, upon an order of the same court dated April 30, 2019, granting the defendant's motion for summary judgment dismissing the complaint, is in favor of the defendant and against the plaintiff dismissing the complaint. The notice of appeal from the order is deemed to be a notice of appeal from the judgment (see CPLR 5512[a] ).
ORDERED that the judgment is affirmed, with costs.
The plaintiff commenced this action against the Village of South Blooming Grove to recover damages for personal injuries she allegedly sustained when a tree fell on her car as she was driving on State Route 208 in the Village. Thereafter, the Village moved for summary judgment dismissing the complaint. The Supreme Court granted the motion, and the plaintiff appeals.
We agree with the Supreme Court's determination to grant the Village's motion for summary judgment dismissing the complaint. In cases involving fallen trees, liability does not attach in the absence of actual or constructive notice of the dangerous condition of the tree (see Ivancic v. Olmstead, 66 N.Y.2d 349, 350–351, 497 N.Y.S.2d 326, 488 N.E.2d 72 ; Harris v. Village of E. Hills, 41 N.Y.2d 446, 449, 393 N.Y.S.2d 691, 362 N.E.2d 243 ; Connolly v. Incorporated Vil. of Lloyd Harbor, 139 A.D.3d 656, 658, 32 N.Y.S.3d 185 ). Here, the Village established, prima facie, that it did not have actual or constructive notice of the alleged dangerous condition of the subject tree (see Ivancic v. Olmstead, 66 N.Y.2d at 350–351, 497 N.Y.S.2d 326, 488 N.E.2d 72 ; Harris v. Village of E. Hills, 41 N.Y.2d at 449, 393 N.Y.S.2d 691, 362 N.E.2d 243 ; Figueroa–Corser v. Town of Cortlandt, 107 A.D.3d 755, 757, 967 N.Y.S.2d 744 ). In opposition, the plaintiff failed to raise a triable issue of fact (see Ivancic v. Olmstead, 66 N.Y.2d at 350–351, 497 N.Y.S.2d 326, 488 N.E.2d 72 ; Quog v. Town of Brookhaven, 273 A.D.2d 287, 288, 708 N.Y.S.2d 715 ).
SCHEINKMAN, P.J., DILLON, DUFFY and CONNOLLY, JJ., concur.