AND JOSEPH UNANDER v. The State of New York, Defendant. (2025)

In this negligence action, claimants Lisa and Joseph Unander allege they sustained personal injuries when, on May 15, 2018, a large chestnut oak tree situated in Fahnestock State Park fell across State Route 301 and crushed their vehicle. Claimant Joseph Unander also brings a derivative claim based on loss of consortium. Claimants now move for summary judgment on the issue of liability. Defendant opposes the motion and cross-moves for summary judgment dismissing the claim. For the reasons stated below, both motions are denied.

THE PARTIES' MOTIONS

I. Claimants' Motion for Summary Judgment

Claimants assert that the subject tree fell because it was dangerously decayed and structurally defective. Further, they argue defendant had constructive notice of the tree's poor condition and, thus, may be held liable for failing to remove the tree before the date of the accident. Claimants' motion is supported primarily by the affidavit of Conrad Decker, a consulting arborist who personally conducted an inspection of the remains of the tree at the site of the accident on July 31, 2024. In further support of the motion, claimants submit transcripts from their depositions and the depositions of two employees of the New York State Office of Parks, Recreation and Historic Preservation (OPRHP), Declan Hennelly and Evan Thompson, both of whom worked at Fahnestock State Park at the time of the accident. Hennelly was an assistant park manager responsible for hazardous tree inspections. Thompson, Hennelly's direct supervisor, performed removal of dangerous trees but was not directly involved with tree inspections.

In his affidavit, Decker states that the tree stood approximately 35 feet from the road on which claimants were traveling and was over 40 feet tall (Decker Affid in Supp of Mot, ¶ 6). In addition, he notes that the accident occurred 70 feet from the "Fahnestock State Park Office entrance roadway" (id. ¶ 5). Decker concludes that the tree fell because of "heartrot," or "internal" or "basal" decay, which would have had "manifest, observable symptoms" by the time of the accident (id. ¶ 8). Specifically, Decker explains, the tree "had a significant sized cavity on the southwest side of the trunk's circumference" caused by the internal decay (id. ¶ 9). Decker states that such cavity would have been a "primary indicator" of structural failure which should have triggered a closer inspection for further decay (id.). According to Decker, a "simple visual inspection" would have revealed decay that "spread through more than 50% of the trunk's diameter" and, moreover, the cavity would have been visible from the road (id.). Decker also opines that the "extensive decay and resulting cavity occurred over the course of at least three decades" (id.).

Next, Decker states that even if the tree did not have a cavity, it should have been more thoroughly inspected for the independent reason that it had "multiple" or "codominant" stems, which Decker says he observed during his inspection and are visible in photographs taken the day of the accident (id. ¶ 10). Decker notes that the State's own tree inspection procedures, which he states are represented by a series of PowerPoint slides attached to his affidavit, require a closer inspection of a tree if it has codominant stems and is within "striking distance" of a road, parking lot, or hiking trail (id. ¶ 10, citing id., Exh B). According to Decker, the presence of codominant stems should have prompted an inspection for "included bark," which is a "structural defect that occurs during the growth and maturation of many trees" (id. ¶ 10). Decker states that included bark is visible in photographs taken the day of the accident and that he observed it during his inspection. Notably, no photographs of the tree are attached to Decker's affidavit. Claimants' submission as a whole contains two photographs from the date of the accident which are attached to Joseph Unander's deposition transcript (see O'Connell Affirm in Supp of Mot, Exh E), but Decker does not specifically reference these photographs or assert that they show included bark.

Decker next opines that the tree's internal decay could have been revealed by thumping the base of the tree with a mallet, which would have demonstrated that the trunk was hollow. Relying again on the PowerPoint slides as well as Hennelly's deposition testimony, Decker explains that the State's inspection protocols "mandated" this mallet thumping procedure (Decker Affid in Supp of Mot, ¶ 14). Ultimately, Decker concludes, within a reasonable degree of forensic arboricultural scientific certainty, that "had a walking inspection been performed during the year or two prior to the accident, an arborist or trained park employee would have and should have recommended th[e] tree for removal based on its risk for collapse" (id. ¶ 16).

II. Defendant's Opposition to the Motion and Cross-Motion for Summary Judgment

Defendant first argues that claimants' motion should be denied—and its cross-motion granted—because it did not have actual or constructive notice that the tree constituted a dangerous condition. To support this argument, defendant relies on the affidavit  ¹ of Wayne Cahilly, a licensed arborist, tree expert, and qualified tree risk assessor. Cahilly's affidavit is based upon his review of roadside photographic logs, Google Street View photographs, claimants' expert disclosure, documents produced in discovery, photographs from the accident scene, witness deposition transcripts, and OPRHP training materials. In addition, Cahilly conducted an inspection of the remains of the subject tree on March 9, 2023.

Cahilly states that the tree was located 31.5 feet from the fog line on State Route 301 and 18.5 feet from the edge of the Fahnestock employee parking lot. Before the accident occurred, the tree leaned approximately 9.0 degrees toward the parking lot and, when the tree eventually failed, it fell "approximately perpendicular to its natural lean" (Cahilly Affid in Supp of Cross-Mot, ¶ 10).

Cahilly opines that at the time of the accident, the trunk of the tree was internally decayed as the result of "brown rot" (id. ¶ 11). He explains that the trunk's interior was decayed from ground level to 9 feet above ground, leaving a shell wall of wood ranging from 2.5 inches to nearly 8 inches in thickness. Despite these poor internal conditions, Cahilly states that the tree would not have exhibited any external visual signs of decay before the accident. According to Cahilly, brown rot generally "does not produce external symptoms such as swelling of the trunk" (id. ¶ 49 [c]), and "[b]rittle failures due to brown-rot fungi occur suddenly and without advance symptomology" (id. ¶ 30). Cahilly further notes, based on his examination of a log at the site, that the tree had grown consistently over 40 years and had gathered sufficient resources to perform metabolic functions. Moreover, Cahilly states that photographs of the tree taken the day of the accident show that the tree was "in leaf" as would be expected and that the tree's upper limbs had "clean, bright," and "live" wood under the bark with no dead wood other than a normal amount of twigs (id. ¶ 15). Cahilly also notes that roadside photographs he reviewed from the New York State Department of Transportation (DOT) captured in August 2017 show "no evidence of decay, stress, or other conditions" (id. ¶ 16). None of the photographs referenced by Cahilly are attached to his affidavit or otherwise contained in defendant's submission, however.

Cahilly also directly addresses the points raised in Decker's affidavit. Initially, Cahilly opines that Decker is not qualified to render an expert opinion in this case, noting that Decker's licenses and credentials in the field of arboriculture all expired in 2010 and that he is no longer active in any professional arboriculture associations. Next, with respect to Decker's opinion that the tree's trunk contained a large cavity and incomplete circumference, Cahilly states that his own inspection of the tree's remains—conducted more than a year before Decker's inspection—revealed no such conditions. As to Decker's conclusion that the cavity could have been seen from the road, Cahilly notes that no cavity is visible in the August 2017 DOT photographs referenced above or in a second set of DOT photographs taken in June 2018—which are also not attached to defendant's motion. Cahilly next explains that codominant stems, i.e., "[f]orked branches of nearly the same diameter, arising from a common union and lacking a branch collar," are a common feature of trees like the tree at issue here and it is unnecessary to inspect every roadside tree with codominant stems unless there is a "specific visually apparent reason to do so" (id. ¶¶ 34-35). Cahilly notes that the point of union between the subject tree's two largest stems, though codominant, was "wide, U-shaped [and] of the type that does not result in included bark" (id. ¶ 37). The tree's remaining stem unions were not "demonstrably codominant with included bark" and, in any event, were sufficiently "high in the crown" that, had they failed, they would have been too short to reach the road (id.). Cahilly also points out that Decker could not have observed codominant stems during a site inspection because the remains of the tree include only a stump and a 24-foot piece of the trunk which has no forks or divisions. Thus, Cahilly concludes that the visual signs of decay and structural defects purportedly observed by Decker, including a cavity in the trunk and included bark in codominant stems, did not exist (see id. ¶ 47).

Cahilly agrees with Decker that, had the base of the tree been thumped with a mallet, defendant would have discovered that the trunk was hollow. However, Cahilly disputes that such a test was required by the State's inspection protocols under these circumstances, or by standard tree risk assessment procedures more generally. Cahilly explains that the tree risk assessment methodology used by the International Society of Arboriculture (ISA) involves three levels of assessment. A Level 1 "Limited Visual Inspection," which Cahilly describes as a "[d]rive-by" or "[w]alk-by" inspection (id. ¶ 42), is the "starting point for risk assessment of large bodies of roadside trees" (id. ¶ 47) and involves "visual assessment [from] a specified perspective of an individual tree or a population of trees near specified targets . . . conducted to identify obvious defects or specified conditions" (id. ¶ 32). An inspector would only engage in a more thorough Level 2 or Level 3 inspection if the Level 1 visual inspection yielded cause for concern. Cahilly notes that the PowerPoint slides attached to Decker's affidavit are derived from a 194-page USDA Forest Service Manual and do not constitute the standard for the inspection of every tree. Rather, the slides only describe the requirements for a Level 2 inspection which, according to Cahilly, is appropriate for "trees identified as requiring a higher level of assessment during the Level 1 Limited Visual Assessment" or "trees located in high visitation areas such as visitor amenities and camp sites" (id. ¶ 42). Cahilly avers that the DOT roadside photographs from August 2017 were taken as part of a Level 1 inspection (see id. ¶ 32) and, because those photographs showed no signs of decay, the State's procedures and the ISA methodology would not have required defendant to inspect the tree by thumping it with a mallet (see id. ¶ 16). The USDA Forest Service Manual which Cahilly relies on as a source of the State and ISA methodologies is not attached to defendant's submission, even though Cahilly appears to quote from it.

Defendant next argues that the sole proximate cause of the tree's failure was a severe thunderstorm that occurred on the date of the accident. Defendant notes that claimants testified during their depositions that, just before the accident, they observed "bizarre" and "ominous" conditions in the sky which appeared to have a "thunderstorm pattern" while they were traveling on the Taconic State Parkway (O'Connell Affirm in Supp of Mot, Exh D, at 14; id., Exh E, at 11). Lisa Unander, who was driving, testified that these weather conditions prompted her to exit the Parkway onto Route 301 because she believed that was "a safe thing to do" (id., Exh D, at 14). Both claimants testified that before the tree that hit their vehicle fell, they saw two or three other trees fall in front of them from the same side of the road (see id., Exh D, at 18; Exh E, at 14, 22). Hennelly testified that the storm on the date of the incident caused thousands of trees to fall throughout the park. Similarly, Thompson testified there was a severe wind event that day and he personally witnessed "huge trees being bent over in half" (id., Exh F, at 15).

In further support of their causation argument, defendant submitted the affidavit of Steven Roberts, a meteorologist. Roberts notes, among other things, that the National Weather Service had issued a Severe Thunderstorm Warning which was in effect from 3:34 p.m. until 5:19 p.m. on the day of the accident. The warning stated that "[t]hese storms have a history of producing wind damage" (Roberts Affid in Supp of Cross-Mot, ¶ 10). Roberts concludes, within a reasonable degree of meteorological certainty, that there was "a severe thunderstorm with wind gusts of approximately 58-69 mph" at the time and place of the accident which "was responsible for widespread damage in the area, and downed several large trees" (id. ¶ 11). Roberts does not address the subject tree specifically, but Cahilly states that the tree's failure "was the result of severe winds which exposed the hidden defect in the trunk when the wind-load exceeded the tree's ability to shed that load through the internally decayed shell" (Cahilly Affid in Supp of Cross-Mot, ¶ 49 [h]).

III. Claimants' Opposition to the Cross-Motion and Reply in Further Support of their Motion

In opposition to defendant's cross-motion, claimants submit another affidavit from Decker, as well as the affidavit of a meteorologist. Regarding the issue of constructive notice, Decker reiterates his view, contrary to Cahilly's opinion, that the tree was visibly decayed at the time of the accident. Decker supports his argument with a photograph of the tree stump taken on July 22, 2022, by claimants' formerly retained expert Charles Sadler, which was not attached to claimants' initial submission (see Sadler Affid, ¶ 2 and attachments; Decker Reply Affid, Exh A). Decker opines that the photograph shows that "no sound tissue remains on the side [of the tree] where the fungus entered the buttress roots" and "the extent of the decay is also apparent with discoloration of the wood" (id. ¶ 7; see id., Exh A). Based upon an observation during his inspection that "half the stump [was] missing," he concludes that "one side of the tree had decay[ ] which manifested into a cavity" (id. ¶ 9). Decker further states that Cahilly's conclusion that the tree had no observable symptoms of decay was based on an incorrect assumption that the tree had a 2.5- to 8-inch wall of holding wood around its entire circumference (see id. ¶¶ 7, 9). The photograph of the stump, according to Decker, shows that the decay had spread "to the outermost portion of the tree's circumference" and there was "nothing like two inches of holding wood" on one side of the tree (id. ¶ 7). Decker acknowledged that the tree would have had "different symptoms" if it had a viable shell (id. ¶ 9). But because no "holding wood" was present, and because Decker's inspection revealed that a large portion of the stump was missing, he concludes that the tree's decay manifested into a cavity (id.).

Decker also references and attaches the photographs which were previously attached as exhibits to Joseph Unander's deposition, and opines that these photographs show codominant stems and included bark (see id., ¶ 9 & Exh B). The copies of the photographs attached to Decker's reply affidavit contain labels with arrows pointing to the alleged defects.

With respect to inspection procedures, Decker states that defendant's own witnesses "confirmed that no inspection of the subject tree or area occurred" in their deposition testimony (Decker Affid in Opp & Reply, ¶ 4). Specifically, Decker points to Hennelly's testimony that he "had not noticed" the tree, did not inspect it, and that the tree was not referred to in tree inspection reports (O'Connell Affirm in Supp of Mot, Exh G, at 151). Hennelly also testified that he does "continuous assessments of trees based on visual inspections" (id.), and stated that on a normal workday, he would have "gone past" the subject tree more than three times a day (id. at 166). Decker further notes, contrary to Cahilly's position, that the State's inspection procedures required that the tree "be examined visually from all sides" in a walking inspection (Decker Affid in Opp & Reply, ¶ 4). In further support of this point, claimants refer back to the State's PowerPoint slides which, they contend, call for the examination of all sides of a tree using binoculars and other diagnostic tools when needed (see O'Connell Reply Affirm, Exh 2, at 3). Decker further explains that because the tree was in a "high use area[ ]," i.e., a place where "people drive, walk[,] and recreate," it was important to examine the base of the tree, not just the canopy or crown (Decker Affid in Opp & Reply, ¶ 8). Claimants also note that Hennelly testified that trees alongside the roadway are in a "high risk" area (O'Connell Affirm in Supp of Mot, Exh G, at 49; see id. at 89), and agreed that these trees were inspected more than trees in other areas of the park—for example, those near hiking trails (see id. at 49). In addition, Thompson agreed that trees within "striking distance" of high-traffic areas should be inspected at least once per year, and that the subject tree was in striking distance of members of the public (O'Connell Affirm in Supp of Mot, Exh F, at 45).

In response to defendant's argument on proximate cause, claimants do not dispute that there were severe weather conditions on the date of the accident. However, they argue that these weather conditions were foreseeable and, moreover, that defendant's meteorologist is not qualified to render an opinion regarding the cause of the tree's failure. Claimants support their argument about foreseeability with an affidavit of their own meteorologist, Howard Altschule, together with the meteorological data on which the expert relied. Altschule opines that, in the county where the accident occurred, there were 339 severe thunderstorm warnings and 12 tornado warnings in the 15 years before the accident.

IV. Defendant's Reply in Further Support of Cross-Motion

Defendant, in reply, submits another affidavit from Cahilly. Embedded in Cahilly's reply affidavit are some of the pre-accident DOT photographs and Google Street View images which were referenced in—but not attached to—his original affidavit.² Cahilly opines that these photographs show that the tree had no visible defects that could have been observed during a drive-by inspection which, Cahilly reiterates, is all that the ISA inspection methodology would have required for this particular tree. Cahilly also provides photographs of the tree stump that he took during his site inspection which also were not previously submitted and, he says, support his measurements of the thickness of the wood in the remains of the stump and disproves Decker's cavity theory. In addition, Cahilly stated that the wood discoloration claimed to have been observed by Decker was not caused by decay but, rather, by "environmental weathering" (Cahilly Reply Affid, ¶ 54).

ANALYSIS

Summary judgment is a "drastic remedy" and may be granted only when no triable issues of fact exist (Andre v Pomeroy, 35 NY2d 361, 364 [1974]; see CPLR 3212). A movant bears the initial burden of establishing the right to judgment as a matter of law by tendering sufficient evidence, in admissible form, demonstrating the absence of material issues of fact from the case (see Matter of Eighth Jud. Dist. Asbestos Litig., 33 NY3d 488, 496 [2019], citing Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see also Trustees of Columbia Univ. in the City of NY v D'Agostino Supermarkets, Inc., 36 NY3d 69, 73-74 [2020]). In this regard, conclusory assertions are insufficient to demonstrate the absence of any material issues of fact (see Ayotte v Gervasio, 81 NY2d 1062, 1063 [1993]). The failure to make the initial prima facie showing requires denial of the motion, " 'regardless of the sufficiency of the opposing papers' " (Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012], quoting Alvarez, 68 NY2d at 324). If the moving party has satisfied the prima facie obligation, however, the burden shifts and the party opposing the motion must demonstrate, also by admissible evidence, the existence of an issue of material fact (see Vega, 18 NY3d at 503, citing Alvarez, 68 NY2d at 324). At the summary judgment stage, the essence of the Court's function is " 'issue-finding, rather than issue-determination' " (Ferrante v American Lung Assn., 90 NY2d 623, 630, quoting Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). And in determining a motion for summary judgment, "the evidence must be viewed in the light most favorable to the party opposing the motion" (Westinghouse Elec. Supply Co. v Brosseau & Co., 156 AD2d 851, 853 [3d Dept 1989]; see also Bill Birds, Inc. v Stein Law Firm, P.C., 35 NY3d 173, 179 [2020]; Vega, 18 NY3d at 503), and " 'every available inference must be drawn in the [non-moving party's] favor' " (Eighth Jud. Dist. Asbestos Litig., 33 NY3d at 496 [alteration in original], quoting De Lourdes Torres v Jones, 26 NY3d 742, 763 [2016]).

"It is well settled that the State has a duty to maintain its roadways in a reasonably safe condition and that such duty extends to trees adjacent to a road which could reasonably be expected to pose danger to travelers" (Guido v State of New York, 248 AD2d 592, 592 [2d Dept 1998]; see Harris v Village of E. Hills, 41 NY2d 446, 448 [1977]; W.M. Movers, Inc. v State of New York, 177 AD3d 1021, 1022 [2d Dept 2019]). To demonstrate a breach of this duty, the claimant must prove that the defendant had actual or constructive notice that the injury-causing tree constituted a dangerous condition, and that the defendant thereafter failed to make reasonable efforts to correct the issue (see Harris, 41 NY2d at 448; Guido, 248 AD2d at 592). Where liability is based on constructive notice, a dangerous condition "must have been visible and apparent and must have existed for a sufficient length of time prior to the accident to permit [the] defendant's employees to discover and remedy it" (Fowle v State of New York, 187 AD2d 698, 699 [2d Dept 1992] [internal quotation marks omitted] [emphasis omitted]; see Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]). "[C]onstructive notice that a tree or limb is dangerous may be based upon signs of decay or other defects that are readily observable by someone on the ground or that a reasonable inspection would have revealed" (Rushton v State of New York, 189 AD3d 1488, 1490 [2d Dept 2020], quoting Babcock v County of Albany, 85 AD3d 1425, 1426 [3d Dept 2011]; see Ivancic v Olmstead, 66 NY2d 349, 351 [1985]).

As an initial matter, the Court rejects defendant's argument that Decker is unqualified to render an expert opinion. To be sure, an expert must be "possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable" (Matott v Ward, 48 NY2d 455, 459 [1979]). Generally, though, " '[a]ny lack of skill or expertise that [a party's] expert may have had goes to the weight of [the expert's] opinion as evidence, not its admissibility' " (Lesniak v Huang, 186 AD3d 1512, 1513 [2d Dept 2020], quoting Cummings v Brooklyn Hosp. Ctr., 147 AD3d 902, 904 [2d Dept 2017]). Here, Decker's curriculum vitae attached to his initial affidavit shows that he possesses sufficient relevant knowledge and training to lay a foundation for his opinion regarding the tree's condition. Decker was a certified arborist from 1992 — 2005 and a board-certified master arborist from 2005 — 2010, he has years of professional experience in tree risk assessment, and he has previously testified in court as an expert witness. Although the fact that his formal credentials have expired could weigh against his credibility at trial, it does not require wholesale rejection of his opinion for purposes of these motions.

Nevertheless, claimants failed to meet their initial burden to demonstrate entitlement to judgment as a matter of a law on the issue of liability. Initially, claimants do not argue that defendant had actual notice of any defect within the tree and, indeed, Hennelly testified that he had not noticed the subject tree and it did not appear on any hazardous tree reports. With respect to constructive notice, Decker's initial affidavit in support of the motion was conclusory and speculative with respect to the existence of visible signs of decay. His opinion—which is based upon an inspection of the remains of the tree that occurred six years after the accident—fails to explain how he concluded that the tree had a large cavity which was visible for some appreciable amount of time before the accident (see Sasso v Village of Bronxville, 208 AD3d 910, 913 [2d Dept 2022]; cf. Babcock, 85 AD3d at 1427). Decker does not, for instance, describe any specific observations he made during his inspection which support the existence of a cavity, or refer to any photographs that might show evidence of same. Claimants cannot rely on Decker's reply affidavit and the photographs attached thereto in order to meet their prima facie burden on the motion (see Cotter v Brookhaven Mem. Hosp. Med. Ctr., Inc., 97 AD3d 524, 525 [2d Dept 2012]).

Decker's opinion that the presence of codominant stems should have prompted a "closer inspection" for included bark, and that trees with included bark "will eventually fail" (Decker Affid in Supp of Mot, ¶ 10), is likewise insufficient to establish constructive notice. Decker does not identify included bark as a cause of the tree's failure or a manifestation of the internal basal decay that he opines caused the tree to fall. Thus, claimants failed to show that codominant stems with included bark, without anything more, would have rendered the tree's basal decay "visible and apparent" such that the State may be charged with constructive notice of that specific condition (Fowle, 187 AD2d at 699 [emphasis omitted]). And, notably, Decker's initial affidavit states that the structural defect of included bark "[t]aken together" with the signs of basal decay would have placed the State on notice to remove the tree—he does not state that removal should have been recommended based on the presence of included bark alone (Decker Affid in Supp of Mot, ¶ 11).

Decker's further conclusion that thumping the tree with a mallet would have revealed internal decay is not sufficient to establish a prima facie case because constructive notice must be based on "visible, outward signs of decay" (Leach v Town of Yorktown, 251 AD2d 630, 631 [2d Dept 1998]; see Asnip v State of New York, 300 AD2d 328, 329 [2d Dept 2002]; see also Ivancic, 66 NY2d at 351 [noting that "there is no duty to consistently and constantly check all trees for nonvisible decay"]). In addition, there is nothing in the PowerPoint slides attached to Decker's affidavit describing a mandatory mallet-thumping procedure for all trees. Hennelly explained at his deposition that hitting trees with a mallet is one procedure he uses to inspect trees, but he did not say this was mandatory for every tree and, in fact, he stated that his inspections were primarily visual given the vast number of trees in the nearly 15,000-acre park and along the roadway (see O'Connell Affirm in Supp of Mot, Exh G, at 38, 73).

Contrary to claimants' argument in reply, defendant's alleged failure to make an appropriate inspection of the tree is not dispositive of liability if there are questions of fact as to whether such an inspection would have uncovered a defect (see Ferris v County of Suffolk, 174 AD2d 70, 76 [2d Dept 1992]; Dufrain v Hutchings, 112 AD3d 1212, 1213 [3d Dept 2013]). Claimants also failed to demonstrate that defendant engaged in the spoliation of evidence by disposing of portions of the tree after the incident, or that it engaged in any impropriety with respect to its retention of Cahilly as an expert.

Turning to the cross-motion, defendant met its initial burden to show that it did not have constructive notice of a dangerous condition because Cahilly's first affidavit demonstrated that the tree lacked visible manifestations of internal decay. Specifically, Cahilly observed during his site inspection that the tree's trunk had a complete shell of wood measuring at least 2.5 inches in thickness; stated that the type of rot present in the trunk does not otherwise produce external symptoms such as swelling or bulging; and opined that the consistent growth present in the roadside log showed that the tree was not "in distress" or "physiologically failing" at the time of the accident (Cahilly Affid, ¶ 14). Cahilly also established that the tree was not "hanging precariously" over the roadway before it fell; rather, it was leaning slightly toward the employee parking lot (Asnip, 300 AD2d at 329 [internal quotation marks omitted]). These observations establish that the tree did not exhibit the external signs of decay that claimants contend existed at the time of the accident, and that the State would not have otherwise been charged with constructive notice to make a closer inspection. Although claimants are correct that Cahilly's conclusions lack probative force to the extent they relied on photographs of the tree's pre-accident condition which were not attached to defendant's original submission (see Cotter, 97 AD3d at 525), the reasoning Cahilly provides based upon his personal observations from the site inspection is independently sufficient to establish a prima facie case.

In opposition to the cross-motion, however, claimants have raised a triable issue of fact with respect to constructive notice. Decker's second affidavit—unlike his first one—provides a nonconclusory basis for his opinion that there was a visible cavity in the tree's trunk before the accident occurred which, if seen by defendant's employees, would have alerted defendant to the presence of decay.³ Moreover, claimants raised a triable issue of fact as to the degree and kind of inspection that would have been reasonable for the tree. Contrary to defendant's contentions, what constitutes a reasonable inspection is dependent on the circumstances of each case, and the fact that a defect is not observable from the road does not absolve the State of liability as a matter of law (see Diamond v State of New York, 53 AD2d 958, 959 [3d Dept 1976]; Rivera v State of New York, UID No. 2008-029-021 [Ct Cl, May 28, 2008] [Mignano, J.]).⁴ The constructive notice inquiry must also take into account whether the inspection procedures actually used by defendant should have revealed a dangerous condition (see Diamond, 53 AD2d at 959). By Cahilly's own account, the "Level 1" inspection that he urges was the maximum necessary for this tree may—though need not necessarily—involve a "[w]alk-by" inspection (Cahilly Affid in Supp of Cross-Mot, ¶ 42; Cahilly Reply Affid, ¶ 23). Although Cahilly claims that DOT inspected roadside trees by observing and photographing them from the road in a moving vehicle, the record shows that trees in Fahnestock State Park were also inspected by employees of OPRHP. Hennelly, a park employee, testified that he performed continuous visual assessments of trees in the park, and that he encountered the subject tree multiple times per day while he was working. When asked how he conducts "a typical visual inspection," Hennelly seemed to describe an inspection performed on foot, and he did not say anything about drive-by inspections (O'Connell Affirm in Supp of Mot, Exh G, at 72). Further, there is testimony from Hennelly's deposition supporting claimants' position that trees near the roadway were considered to pose a higher risk (and thus subject to closer inspection) than other trees in the park. Thus, there is a question of fact as to whether the State may be charged with constructive notice because park employees should have seen significant and obvious signs of decay that, according to Decker, would have been observed in a cursory walking inspection.

In deciding defendant's cross-motion, the Court did not consider the photographs submitted for the first time in defendant's reply submission. Contrary to defendant's contentions, the concept of "open[ing] the door" to the introduction of otherwise inadmissible evidence at trial has no relevance here (Scolavino Reply Affirm, at 3 n 2, citing People v Reid, 19 NY3d 382 [2012] and Oppedisano v Arnold, 191 AD3d 794 [2d Dept 2021]). On a motion for summary judgment, evidence submitted in reply must be disregarded by the Court unless it is offered in response to allegations raised for the first time in the nonmovant's opposition papers, or the nonmovant has an opportunity to respond (see Citimortgage, Inc. v Espinal, 134 AD3d 876, 879 [2d Dept 2015]). The photographs in Cahilly's reply affidavit serve to bolster the points made in his original affidavit rather than to respond to new arguments raised in claimants' opposition. This is made apparent by the fact that Cahilly referenced and relied on these photographs to support his original affidavit but inexplicably failed to attach them thereto. Furthermore, claimants had no opportunity to respond to Cahilly's reply affidavit. In any event, Cahilly's affidavit merely raises additional questions of fact as to whether any defects would have been visible before the accident and, if they were, whether they could have or should have been observed through reasonable inspection.

Next, defendant failed to establish, prima facie, that wind produced by a severe thunderstorm was the sole proximate cause of the accident. At best, defendant established that the thunderstorm was one factor that caused the tree to fall; defendant did not demonstrate that the storm was the only substantial cause (see Mazella v Beals, 27 NY3d 694, 706 [2016] [noting that "there may be more than one proximate cause of an injury"] [internal quotation marks omitted]). By Cahilly's own account, the tree's internal rot "reduced the bending and torsional strength of the trunk," and its "internally decayed shell" was a factor in its inability to shed the load exerted upon it by the severe winds (Cahilly Affid in Supp of Cross-Mot, ¶ 49 [b], [h]). Moreover, claimants correctly argue that Roberts' affidavit merely describes the severe weather conditions on the date of the accident and does not rule out decay as a cause of the tree's failure. The fact that an "unprecedented storm" occurred is not an "absolute defense" in fallen tree cases, particularly where, as here, it has not been demonstrated that the storm was unforeseeable (Edgett v State of New York, 7 AD2d 570, 571 [3d Dept 1959]).

Finally, defendant's argument that the State cannot be held liable because the Unanders chose to drive on a road with a higher concentration of trees during a thunderstorm is unsupported by law or fact. Defendant appears to frame this argument as one that the tree constituted an open and obvious condition (see Scolavino Affirm in Supp of Cross-Mot, ¶ 34, citing Pinero v Rite Aid of NY Inc., 294 AD2d 251 [1st Dept 2002]), but there is no evidence in the record to support the notion that the falling tree was "readily observable by those employing the reasonable use of their senses" (Pinero, 294 AD2d at 252 [internal quotation marks omitted]). In fact, this line of reasoning seems to contradict defendant's main argument that any dangerous condition posed by the tree was purely latent.

In sum, multiple issues of fact preclude the Court from granting summary judgment to either party (see Cummings, 147 AD3d at 904 [affirming denial of separate motions for summary judgment where parties presented conflicting expert testimony]). Accordingly, it is hereby

ORDERED that claimants' motion (M-101387) and defendant's cross-motion (CM-101846) are DENIED in their entirety. A trial on the issue of liability will be scheduled as soon as practicable.

August 21, 2025

Albany, New York

ZAINAB A. CHAUDHRY

Judge of the Court of Claims

Papers Considered:

1. Claim, filed January 23, 2019;

2. Answer, filed March 11, 2019;

3. Notice of Motion and Affirmation of Daniel J. O'Connell, Esq., with Exhibits A-B and D-I, filed September 23, 2024;

4. Notice of Cross-Motion and Affirmation of Assistant Attorney General Joseph E. Scolavino in Support of Cross-Motion and in Opposition to Motion, with Exhibits 1 and 2, filed February 5, 2025;

5. Affirmation of Daniel J. O'Connell, Esq., in Opposition to Cross-Motion and in Reply, with Exhibits 1-6, filed May 29, 2025; and

6. Reply Affirmation of Assistant Attorney General Joseph E. Scolavino, with Exhibits A and B, filed July 2, 2025.

FOOTNOTES

1.   Although it is titled an "affidavit," the statement is not sworn, making it an affirmation. This decision will refer to the parties' papers as titled by the parties, however.

2.   Defendant filed its reply brief by fax and, as such, the photographs appear in black and white. However, defendant provided the Court with another copy of the reply brief containing color photographs.

3.   Defendant argues that Decker failed to address Cahilly's assertion that brown rot does not produce external symptoms (see Scolavino Reply Affirm, ¶ 7). However, reading Cahilly's original affidavit in the light most favorable to claimants as the Court must, the affidavit does not state that brown rot never produces any external symptoms but rather that it "does not produce external symptoms such as swelling of the trunk that would catch the attention of an assessor" (Cahilly Affid in Supp of Cross-Mot, ¶ 49 [c] [emphasis included]). Cahilly does not expressly say it is impossible for brown rot to produce a cavity. Thus, Decker's second affidavit addresses this point by arguing that Cahilly's claim of a lack of external symptoms is based upon an incorrect assessment that the tree had 2.5 to 8 inches of holding wood around the entire circumference of the trunk. Moreover, Decker diagnosed the type of rot as "heartrot" and it is not clear on this record whether that is different from brown rot and, if so, whether it has different symptomology.

4.   Defendant's reliance on Clark v State of New York (UID No. 2025-066-101 [Ct Cl, May 22, 2025] [Haak, J.]) for this proposition is misplaced because the conclusions reached by Judge Haak there regarding reasonable inspection procedures are findings of fact based on the record developed at trial, not conclusions of law. Notably, in the same action, the parties' cross-motions for summary judgment were denied (see Clark v State of New York, UID No. 2024-066-512 [Ct Cl, Feb. 21, 2024] [Haak, J.]).

Zainab A. Chaudhry, J.