| Lillis v Wessolock |
| 2008 NY Slip Op 03595 [50 AD3d 969] |
| April 22, 2008 |
| Appellate Division, Second Department |
| Joseph Lillis, Appellant, v Robert E. Wessolock et al.,Respondents. |
—[*1] Bruce A. Lawrence, Brooklyn, N.Y. (Christine L. Fontaine of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Richmond County (McMahon, J.), dated January 11, 2007, which granted thedefendants' motion for summary judgment dismissing the complaint and denied as academic hiscross motion for the imposition of sanctions based upon spoliation of evidence.
Ordered that the order is affirmed, without costs or disbursements.
The plaintiff allegedly sustained injuries when a limb of a tree on the defendants' propertybroke off and fell on top of the vehicle he was operating. In cases involving fallen trees, aproperty owner will be held liable only if he or she knew or should have known of the dangerouscondition of the tree (see Ivancic v Olmstead, 66 NY2d 349, 351 [1985], certdenied 476 US 1117 [1986]; Harris v Village of E. Hills, 41 NY2d 446, 450 [1977];Asnip v State of New York, 300 AD2d 328 [2002]; Lahowin v Ganley, 265AD2d 530 [1999]; Golan v Astuto, 242 AD2d 669 [1997]). Constructive notice in such acase can be imputed if the record establishes that a reasonable inspection would have revealedthe dangerous condition of the tree (see Harris v Village of E. Hills, 41 NY2d at 449).
In response to the defendants' demonstration of their entitlement to judgment as a matter oflaw, the plaintiff failed to submit evidence sufficient to raise a triable issue of fact. Accordingly,the Supreme Court properly granted the defendants' motion for summary judgment dismissingthe complaint. Mastro, J.P., Santucci, Eng and Belen, JJ., concur.