Opinion
017316/06.
February 11, 2009.
Guercio Guercio, Esqs, Attorney(s) for Plaintiffs.
Law Offices of John P. Humphreys, Attorney(s) for Defendant.
Milber, Makris, Plousadis Seiden, LLP Attorney(s) for Defendant.
Law Offices of Robert P. Tusa, Attorney(s) for Defendant.
Mazzara Small, P.C., Attorney(s) for Defendants.
In an action for personal injuries the defendant, Harder Nursery and Garden Center Inc., (hereinafter referred to as Harder) moves for summary judgment dismissing the complaint (motion #2). The defendant North Shore Nursery Tree and Landscaping Co. (hereinafter referred to as North Shore) cross-moves for summary judgment dismissing the complaint (motion #3). Lastly, the defendant Franzese cross-moves for summary judgment dismissing the complaint (motion #4). The plaintiffs oppose all three applications. The defendant FF Contracting has submitted no papers in response to these various applications. For the reasons stated herein, the motion and cross-motions are granted and the action is dismissed.
The Common Fact Pattern
The following facts appear to be undisputed. On November 13, 2003 at approximately 9:00 p.m. the plaintiffs were in a car in the vicinity of 220 Clinton Ave., Garden City, New York when a tree fell on their automobile allegedly severely injuring the plaintiff Michael Sullivan and causing the plaintiff Nadine Sullivan (the adjacent passenger) extreme emotional distress. The tree in question was located between the sidewalk and the street on property owned by the Village of Garden City. This action was commenced in October of 2006, by service of a complaint which further alleged in pertinent part that the defendants Harder and North Shore were under contract with the Village of Garden City to prune and/or remove diseased trees. The plaintiffs now contend that the roots of the tree in question were cut by the defendant Franzese, the adjacent property owner, in order to install or repair his sprinkler system, or alternatively, Franzese's over irrigation of his property caused the roots to rot and said circumstances caused that tree to fall. The defendant FF is a tenant in possession of a potion of the premises in question.
Harder's Motion
The defendant Harder seeks summary judgment based on its assertion that while it had contracts for tree services with the Village of Garden City, that such contracts did not cover this geographic part of the Village. The plaintiff does not oppose this motion. In fact, the record contains proof that the plaintiff discontinued its action against Harder. Accordingly, Harder's motion has been rendered moot, since there is no longer an action pending against it by the plaintiff. Similarly, any cross claims are likewise dismissed since no issues of fact exist which might impose liability upon Harder.
North Shore's Motion
The defendant North Shore submitted proof whereby it established that it did have contracts with the Village of Garden City for the vicinity in question, but that it had completed all work in that area on March 31, 2002 (one and half years prior to the incident in question). More, significantly, North Shore established that its contract only required pruning or removal of trees. In performing those duties it entailed no digging or trenching. Thus, to the extent that one of the plaintiff's theories alleges that the roots were cut it would appear that it could not have been cut by North Shore. To the extent North Shore performed tree services for the Village, they performed work only on trees designated for work by the Village and had no discretion on what trees to work on. Additionally, North Shore submits proof that on the night in question wind gusts in excess of 60 mph were present and asserts that the tree was toppled by the wind through no negligence or human intervention.
The plaintiffs claim that the North Shore failed to make a prima facie showing of its entitlement to the relief requested as it failed to establish that it had no constructive notice of the defective condition of the tree. The plaintiffs assert that a reasonable inspection would have revealed the tree was in a defective condition and in fact North Shore made no inspection of the tree. The plaintiff also claims that the doctrine of Res Ipsa Loquitor should be applied in this case, as the accident could not have occurred but for the negligence of the remaining defendants.
The plaintiffs submit what purports to be an affidavit of a tree expert to wit: Mr. Hickey. That document does not indicate that the statements are being made under the penalties of perjury, but nonetheless indicates that the witness was sworn. Mr. Hickey was shown pictures taken in 2003 and conducted an inspection of the site in September of 2008. Based on these circumstances, he concluded that the root system was compromised on November 13, 2003 as a result of root rot "and/or some other human activity having an effect on the . . .root system" (Hickey affidavit dated November 13, 2008 at p3). Mr. Hickey claims that the picture does not show a tree with a healthy root system which might be felled by wind. Mr Hickey indicates that the photograph shows a sprinkler line in proximity to the uprooted tree. He concludes that the root rot occurred as a result of over irrigation of the tree. Mr Hickey also asserts that the standard for the arborist industry requires an inspection prior to the pruning of a tree, and that such an inspection may (emphasis added) have shown North Shore that the root system of the tree was compromised. There is no adequate explanation of how an inspection of a tree 1 1/2 years before its fall would reveal a compromised root system.
With respect to the plaintiff, Nadine Sullivan, counsel for plaintiffs claims that said plaintiff was in the zone of danger when the tree fell, and sustained an emotional injury. Plaintiffs' counsel claims that the both cross-motions fail to negate her claims.
In reply, the defendant North Shore requests that the court disregard the plaintiffs' expert affidavit in its entirety. North Shore claims the affidavit is defective in that it fails to indicate that it is made under the penalties of perjury. More significantly, North Shore calls to the court's attention that contrary to proper discovery orders the plaintiff failed to disclose expert information within the time directed. The certification order gave the plaintiff 120 days to file a note of issue. Plaintiff filed the note of issue seven days later certifying that all discovery was complete and without disclosing any potential expert witnesses. Under these circumstances, North Shore asserts that the affidavit of plaintiffs expert should not be considered. As a separate basis for rejection of the Hickey affidavit, the defendant North Shore claims it is vague and rife with unsupported conclusions, and, in any event, fails to set forth facts upon which liability could be imposed upon North Shore. Lastly, the defendant North Shore contends that the theories of res ipsa or "zone of danger" have no application to this case.
The court concludes that any fair reading of North Shore's application shows that it met its prima facie burden. North Shore demonstrated that it did not own the tree in question and that there was no privity between it and any one other than the Village of Garden City. North Shore demonstrated that it did not assume a duty of care to the plaintiffs, nor was its contract with the Village of Garden City so comprehensive as to displace Garden City's responsibility for its property, nor did it launch a force or instrumentality of harm directed against the plaintiffs, and thereby demonstrated its right for judgment in its favor. See, Espinal v. Mellville Snow Contractors, 98 N.Y.2d 136, 746 N.Y.S.2d 120,Kaehler-Hendrix v. Johnson Controls Inc., ___ A.D.3d ___N.Y.S.2d___(decision dated 1/13/2009), Giustizia v. Radazo, 297 A.D.2d 331, 746 N.Y.S.2d 332. The concepts of constructive notice and res ipsa loquitor have no application to a contractor of the property owner absent one of the enumerated circumstances set forth above. (See infra.) The plaintiff's proof raises no issue of fact as to this pivotal issue. Accordingly, North Shore's motion is granted in its entirety.
Franzese's Motion
The defendant Franzese timely cross-moves for summary judgment by service of the motion within 60 days of the filing of the note of issue, and submits proof which established that he did not own the tree in question. He submitted additional proof that he undertook no activity that would adversely effect the health of the tree. Moreover, he had no actual notice of any defective condition, nor did he notice any condition of the tree which would give him reason to think that the tree was in danger of falling.
The plaintiffs reiterate many of the same arguments in opposing this cross-motion as was set forth in their opposition to North Shore's motion including the assertion of the doctrine of res ipsa loquitor and the "zone of danger" theory as it might be applied to the plaintiff Nadine Sullivan. In this instance, the plaintiff claims that Mr. Franzese either cut the roots of the tree or caused them to rot via over-irrigation. In this regard, the plaintiffs rely on Franzese's deposition wherein he indicates that the sprinkler had been leaking and that he effected repairs in 2000. The plaintiffs claim that these activities were in violation of Garden City Ordinances which prevent activities which might cause the death of a tree. Pursuing this line of reasoning, the plaintiffs claim that Franzese's sprinkler repair made special use of the Village's property and thus, made him responsible for the insuring the safe condition of the tree. Plaintiff also claims that Franzese failed to establish his entitlement to the relief requested, in particular in failing to negate actual or constructive notice of the defective tree.
By way of reply, Franzese adopts all the arguments contained in North Shore's reply papers. Additionally, the defendant Franzese calls to the courts attention that the plaintiffs' theories set forth in opposition to the motions and the cross-motions interposed herein are at variance with the claims asserted in the plaintiff's bill of particulars-(especially the theory regarding the installation of the sprinkler system).
Be that as it may, the defendant's Franzese's proof is sufficient to establish a prima facie basis for the relief sought. Like North Shore, Franzese is not the owner of the property on which the tree was located. Unlike its response to North Shore's cross-motion, the plaintiffs' response to Franzese's application attempts to demonstrate that at the very least Franzese as the abutting property owner either made special use of the property (by repairing its sprinkler system) or launched the instrumentality that caused the injury to plaintiffs by either cutting the roots of the tree or by over-irrigating the tree and thereby rotting the roots. The plaintiffs fail to offer proof by a person possessed of personal knowledge as to these facts. Instead the plaintiffs take certain portions of Franzese's deposition and then has his expert speculate that these facts may have caused the tree to fall. The experts conclusions were based on the Franzese deposition, a photograph taken after the fall in 2003, and a personal inspection of the site some five years after the incident and eight years after Franzese did work on the sprinkler system. The expert affidavit is replete with assumptions and speculations that have sparse support in the record. Speculation and surmise are simply insufficient to defeat a motion for summary judgment.McDonal v. Mauss, 38 A.D.3d 728, 833 N.Y.S.2d 535, Regan v. City of New York, 8 A.D.3d 462, 778 N.Y.S2d 294, Mollin v. County of Nassau, 2 A.D.3d 600, 769 N.Y.S.2d 59.
Even if the court were to give the plaintiffs' proof the most favorable inferences, no facts have been established that would impose liability upon Franzese. The plaintiffs' res ipsa theory is simply not applicable. In order for res ipsa to apply the burden is on the plaintiffs to establish that the injury is the kind that could not occur in the absence of negligence, that the injury is caused by an agency or instrumentality exclusively within the defendant's control, and the injury is in no part caused by the voluntary action of the plaintiff. See, Merjon v. Rais Construction Co., 7 N.Y.3d 203, Simmons v. Neuman, 50 A.D.3d 666, 855 N.Y.S.2d 189. Clearly, the plaintiffs are unable to establish the presence of the first two factors, as the accident could have been caused by the wind and the tree was not in the exclusive control of any of the named defendants. Similarly, the plaintiffs' entire theory that the Franzese had constructive notice of the defective condition has no application herein as Franzese was not the property owner. Even a property owner cannot be liable unless the record establishes that a reasonable inspection would reveal the alleged dangerous condition of the tree. See, Harris v. Village of East Hills, 41 N.Y.2d 446, 393 N.Y.S.2d 691,Michaels v. Park Shore Realty Corp., 58 A.D.2d 802, 865 N.Y.S.2d 686. Here, the record shows that the the root system is incapable of reasonable inspection, and the plaintiffs' proof does not even suggest that a reasonable inspection of the tree (i.e. by a lay person) would indicate that the condition of the tree presented a danger. There being no negligence by any of the named defendants in causing the tree to fall, the plaintiffs' "zone of danger" claim has been rendered moot.
Although no longer necessary to the determination herein, the court further observes that the affidavit of the plaintiffs' expert is entitled to no consideration. The Appellate Division in this Department has recently reiterated that on a motion for summary judgement, the motion cannot be defeated by the use of the affidavits of experts that were not previously disclosed to the party making the motion for summary judgement. King v. Gregruss Management Corp., 57 A.D.3d 851, 870 N.Y.S.2d 103, Construction by Singletree Inc. v. Lowe, 55 A.D.3d 861, 866 N.Y.S.2d 702. As a practical matter without the use of the expert as a witness at trial, the plaintiff will be unable to meet their prima facie burden. Based on the foregoing, the motion and cross-motions are granted and the plaintiffs claims are dismissed with prejudice.
Settle judgment in accordance with this memorandum.