| Whalen v New York City Dept. of Envtl. Protection |
| 2011 NY Slip Op 07688 [89 AD3d 416] |
| November 1, 2011 |
| Appellate Division, First Department |
| John K. Whalen, Appellant, v New York City Departmentof Environmental Protection et al., Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Norman Corenthal of counsel), forrespondents.
Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered on or about July 9,2010, which granted defendants' (collectively the City's) motion to renew a motion for summaryjudgment dismissing the complaint and, upon renewal, granted the motion for summaryjudgment, unanimously reversed, on the law, without costs, and the motion for summaryjudgment denied.
Plaintiff was injured when a tree fell on his car as he was driving on State Route 28 in UlsterCounty on reservoir property owned by the City. Plaintiff alleges that the City was negligent infailing to remove a diseased, decaying, and unstable tree from the perimeter of the roadway. TheCity moved unsuccessfully for summary judgment dismissing the complaint for lack of notice ofthe dangerous condition of the tree. It then moved for renewal, based on the "new fact" that thetree was located within a 200-foot-wide permanent easement granted to the State in 1947 for thepurpose of constructing and maintaining the roadway.
The City failed to show that it exercised due diligence in investigating the facts relevant to itsliability or that it had a reasonable excuse for failing to present these facts, which it discovered inpublicly available documents concerning its own property, on the prior motion (seeCPLR 2221 [e] [2]; Eddine v FederatedDept. Stores, Inc., 72 AD3d 487 [2010]; Matter of Weinberg, 132 AD2d 190,209-210 [1987], lv dismissed 71 NY2d 994 [1988]). The interests of justice did notwarrant successive motions for summary judgment (see Jones v 636 Holding Corp., 73 AD3d 409 [2010]).
In any event, the City failed to demonstrate that it is absolved from liability in this case bythe existence of a permanent easement on its property. Citing Tagle v Jakob (97 NY2d165 [2001]), the City argues that, as the servient owner of the property, it had no duty to maintainthe easement. In Tagle, the plaintiff was injured when he touched an uninsulated electricwire while climbing a tree on the defendant's property. The wire was owned by New York StateElectric and Gas Co., which had an easement on the property for the maintenance of utility polesand overhead electric wires. The Court found that the property owner had no duty to maintain the[*2]easement, and therefore could not be held liable to theplaintiff, because the record demonstrated that she lacked the special expertise required tomaintain electric wires and could not take any "remedial" steps in connection with the wireswithout risking disruption of the utility's easement (97 NY2d at 168-169). Here, in contrast, thereis evidence that the City possessed and maintained the forested area of its property beyond theState's easement, where it posted "No Trespassing" signs (see Butler v Rafferty, 100NY2d 265, 270 [2003]), and there is no evidence that the City lacked the expertise required toremove diseased trees or that doing so would interfere with the State's easement. Contrary to theCity's argument, the fact that the State has a duty to maintain the trees on the property to keep thehighway safe does not mean that the City, as a landowner, does not also have a duty to maintainits property in reasonably safe condition (see e.g. Bingham v New York City Tr. Auth., 8 NY3d 176 [2007]).Concur—Gonzalez, P.J., Tom, Sweeny and Renwick, JJ.