HANDWERKER v. CITY OF NEW YORK (2011)

Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered September 23, 2010, which, in this action for personal injuries allegedly sustained when plaintiff, while sitting on a park bench, was struck by a branch that fell from a tree, denied defendants' motion for summary judgment dismissing the complaint, and denied plaintiff's cross motion to strike the answer for spoliation of evidence, unanimously affirmed, without costs.

 Dismissal of the complaint was not warranted since the record presents triable issues of fact as to whether defendants had constructive notice of the alleged condition of the tree.   Plaintiff submitted evidence, including affidavits from experts, showing that there were clear, visible signs of the tree's decay that existed for several years and that defendants performed work on the tree prior to the accident (see Harris v. Village of E. Hills, 41 N.Y.2d 446, 393 N.Y.S.2d 691, 362 N.E.2d 243 [1977];  compare Clarke v. New York City Hous. Auth., 282 A.D.2d 202, 724 N.Y.S.2d 22 [2001] ).

 The court did not improvidently exercise its discretion in considering the affidavits of plaintiff's experts.   There is no evidence that plaintiff willfully failed to disclose the experts in a timely manner;  nor was there prejudice to defendants (see Martin v. Triborough Bridge & Tunnel Auth., 73 A.D.3d 481, 901 N.Y.S.2d 193 [2010], lv. denied 15 N.Y.3d 713, 2010 WL 4643900 [2010];  Gallo v. Linkow, 255 A.D.2d 113, 117, 679 N.Y.S.2d 377 [1998] ).

 Furthermore, the court properly denied plaintiff's cross motion to strike defendants' answer as a sanction for the partial destruction of the subject tree, without prejudice to plaintiff's ability to move for an adverse inference charge at trial.   The record shows that portions of the tree were preserved and that the tree was photographed (see Rodriguez v. 551 Realty LLC, 35 A.D.3d 221, 826 N.Y.S.2d 234 [2006] ).