Clarke v. New York City Housing Authority

282 A.D.2d 202, 724 N.Y.S.2d 22, 2001 N.Y. App. Div. LEXIS 3383

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 3, 2001
• Status: Published

Opinion

—Order, Supreme Court, New York County (Harold Tompkins, J.), entered November 4, 1999, which, in an action for personal injuries sustained when a branch from a tree located on defendant’s property fell on plaintiff’s head, granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The action was properly dismissed in the absence of evidence sufficient to raise an issue of fact as to whether defendant failed to properly maintain the trees on its property, or created or had actual or constructive notice of the danger posed by the branch that fell on plaintiff (see, Gordon v American Museum of Natural History, 67 NY2d 836). While plaintiff’s expert states that a close inspection revealed small scars at the base of the tree indicative of decay, there is no indication that such scars were readily observable, or other basis for inferring that defendant should have realized that a potentially dangerous condition existed (see, Ivancic v Olmstead, 66 NY2d 349, 351-352).

We have considered plaintiffs other arguments and find them unavailing. Concur — Sullivan, P. J., Rosenberger, Mazzarelli, Wallach and Buckley, JJ.