Crawford v. Forest Hills Gardens

34 A.D.3d 415, 824 N.Y.S.2d 150

Opinion

In an action to recover damages for personal injuries, etc., the defendants John Guck and Joan Guck appeal from an order of the Supreme Court, Kings County (Ruchelsman, J.), dated October 31, 2005, which denied their motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The plaintiff Donna Crawford was injured when a tree on the appellants’ property blew over and fell on her car. No liability attaches to a landowner whose tree falls and injures another unless there exists actual or constructive knowledge of the defective condition of the tree (see Ivancic v Olmstead, 66 NY2d 349, 350-351 [1985]).

The Supreme Court properly denied the appellants’ motion for summary judgment. In response to the appellants’ demonstration of entitlement to judgment as a matter of law, the plaintiffs offered the affidavit of their expert which raised a triable issue of fact as to whether the tree presented a “readily-observable manifestation of decay” that should have alerted the appellants to the defective condition (cf. Ivancic v Olmstead, supra; Harris v Village of E. Hills, 41 NY2d 446 [1977]; Lahowin v Ganley, 265 AD2d 530 [1999]). Schmidt, J.P., Santucci, Fisher and Covello, JJ., concur.