| Michaels v Park Shore Realty Corp. |
| 2008 NY Slip Op 08102 [55 AD3d 802] |
| October 21, 2008 |
| Appellate Division, Second Department |
| John Michaels et al., Respondents, v Park Shore Realty Corp. etal., Appellants, and Lorax Landscaping Corp. et al., Respondents. |
—[*1] Seidner, Rosenfeld & Guttentag, LLP, Babylon, N.Y. (Jeffrey Guttentag of counsel), forplaintiffs-respondents. Tonetti & Ambrosino (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Marshall Sweetbaum], ofcounsel), for defendants-respondents.
In an action to recover damages for personal injuries, etc., the defendants Park Shore Realty Corp.and Park Shore Country Day Camp and Day School appeal, as limited by their brief, from so much ofan order of the Supreme Court, Suffolk County (R. Doyle, J.), dated December 20, 2007, as deniedtheir motion for summary judgment dismissing the complaint insofar as asserted against them, andgranted that branch of the cross motion of the defendants Lorax Landscaping Corp. and Sterling Treeand Lawn which was for summary judgment dismissing their cross claims.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs.
Justin Michaels, an infant, was struck and killed by a large branch that broke off a tree while hewas attending a day camp operated by the defendant Park Shore Country Day Camp and Day School(hereinafter Day Camp) on property owned by the defendant Park Shore Realty Corp. (hereinafterPSRC). The defendants Lorax Landscaping Corp. and Sterling Tree and Lawn (hereinafter togetherSterling) had a contract with Day Camp to provide certain limited tree care services which did notinclude tree trimming or pruning. Justin's father, individually, and as executor of Justin's estate andguardian of Justin's two infant siblings, who were also present at the [*2]scene, commenced this action to recover damages for personal injuries.Day Camp and PSRC moved for summary judgment dismissing the complaint insofar as assertedagainst them. Sterling cross-moved, inter alia, for summary judgment dismissing the cross claims of DayCamp and PSRC. The Supreme Court, among other things, denied the motion of Day Camp andPSRC, and granted that branch of the cross motion of Sterling which was to dismiss the cross claims.We affirm.
In cases involving falling trees or branches, liability may be imposed if there is actual or constructivenotice of the alleged dangerous or defective condition of the tree (see Ivancic v Olmstead, 66NY2d 349 [1985], cert denied 476 US 1117 [1986]; Lillis v Wessolock, 50 AD3d 969 [2008]). Constructive notice may beimputed if the record establishes that a reasonable inspection would have revealed the allegeddangerous or defective condition of the tree (see Harris v Village of E. Hills, 41 NY2d 446[1977]; Lillis v Wessolock, 50 AD3d969 [2008]). Here, in support of their motion, Day Camp and PSRC made a prima faciedemonstration of entitlement to judgment as matter of law dismissing the complaint insofar as assertedagainst them with evidence that they lacked actual or constructive notice of the allegedly dangerous anddefective condition of the tree. However, in opposition, the plaintiffs raised a triable issue of fact as toboth actual and constructive notice. Thus, summary judgment was properly denied to Day Camp andPSRC.
In support of its cross motion, Sterling established, prima facie, its entitlement to judgment asmatter of law dismissing the cross claims of Day Camp and PSRC (see Stiver v Good & Fair Carting & Moving, Inc., 9 NY3d 253 [2007];Church v Callanan Indus., 99 NY2d 104 [2002]; Espinal v Melville Snow Contrs., 98NY2d 136, 140 [2002]). In opposition, Day Camp and PSRC failed to raise a triable issue of fact.
The remaining contentions of Day Camp and PSRC are without merit. Lifson, J.P., Ritter, Millerand Balkin, JJ., concur.