| Bandier v Tim Blenk Tree Care, Inc. |
| 2008 NY Slip Op 09739 [57 AD3d 595] |
| December 9, 2008 |
| Appellate Division, Second Department |
| Martin Bandier, Appellant, v Tim Blenk Tree Care, Inc.,Respondent. |
—[*1] John P. Humphreys, Melville, N.Y. (Dominic P. Zafonte of counsel), for respondent.
In an action to recover damages for breach of contract and negligence, the plaintiff appeals from anorder of the Supreme Court, Suffolk County (R. Doyle, J.), dated July 24, 2007, which granted thedefendant's motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff owns an estate in Southampton which is bordered by tall privet hedges and roundprivet bushes. In February 2004 the defendant entered into a plant management contract to maintain theplaintiff's estate. Under the terms of the contract, the defendant was required to have a traineddiagnostician periodically visit the plaintiff's estate in order to inspect trees and shrubs for insect anddisease activity, treat controllable insect and disease problems, and make recommendations foradditional services that might increase the vigor of the plants. During the summer of 2004, while thecontract was in effect, the plaintiff's privet hedges and bushes suffered from an infestation of prunicolascale, an insect which pierces the leaves or stems of plants and sucks out their juices. Other propertiesin Southampton also suffered from an unprecedented level of scale infestation in the summer of 2004,prompting the local horticultural community to develop new strategies and techniques to control thepest. The plaintiff alleges that the scale infestation caused such extensive damage to his privet hedgesand bushes that many of them had to be replaced.
The plaintiff subsequently commenced this action alleging that the defendant had breached [*2]the plant management contract by failing to adequately monitor the privethedges and bushes on his property and treat them for scale infestation. The plaintiff also soughtdamages on the theory that the defendant had negligently caused the scale infestation by heavilyspraying the property to treat another type of insect infestation. After depositions were conducted, thedefendant moved for summary judgment, contending that it properly diagnosed the scale outbreak onthe plaintiff's property and treated it in accordance with prevailing horticultural industry standards. Insupport of the motion, the defendant submitted an expert affidavit from a consulting arborist whoconcluded, inter alia, that neither the defendant's maintenance practices nor its use of pesticides directlyor indirectly damaged the plaintiff's hedges and bushes. In opposition to the motion, the plaintiffcontended that the defendant had failed to detect the scale outbreak at a point when it could have beeneffectively treated, and exacerbated the problem by spraying for another insect which was a naturalpredator of scale. The Supreme Court granted the defendant's motion, and we affirm.
"A person charged with performing work under a contract must exercise reasonable skill and carein performing the work and negligent performance of the work may give rise to actions in tort and forbreach of contract" (International Fid. Ins. Co. v Gaco W., 229 AD2d 471, 474 [1996]; see Larchmont Nurseries, Inc. v Daly, 33AD3d 872, 874 [2006]). Here, the defendant made a prima facie showing that it could not be heldliable on theories of breach of contract or negligence by submitting evidentiary proof that it provided thehorticultural services required by the subject contract, and that it performed these services withreasonable care and competence in accordance with accepted protocol employed by professionals inthe horticultural field (see Milau Assoc. v North Ave. Dev. Corp., 42 NY2d 482, 486[1977]). The defendant's evidentiary submissions demonstrated that its use of pesticides did not causeor exacerbate the scale problem on the plaintiff's property, that it utilized all conventional methodsknown in the summer of 2004 to control the scale outbreak, that other professionals used the samemethods, and that the same scale control methods were used on the plaintiff's property the followingsummer by the company hired to replace it. In opposition to the motion, the plaintiff failed to comeforward with evidentiary proof to support his claims that the defendant negligently caused orexacerbated the scale problem by its use of pesticides, or that scale infestation was apparent in thespring of 2004, and industry protocol as it then existed required scale to be treated in the spring whenthe insects were at their nymph stage. Mastro, J.P., Rivera, Fisher and Eng, JJ., concur. [See2007 NY Slip Op 32341(U).]