TAVERNESE v. TOWN OF NORTH HEMPSTEAD (2025)

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Nassau County (Thomas Rademaker, J.), entered April 11, 2023.  The order denied the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, without costs or disbursements.

On February 25, 2019, at approximately 4:30 a.m., the plaintiff allegedly was injured when he was struck by a large branch that fell from a tree adjacent to a sidewalk located in New Hyde Park. The plaintiff commenced this action against the defendant Town of North Hempstead to recover damages for personal injuries.  In an order entered April 11, 2023, the Supreme Court denied the defendant's motion for summary judgment dismissing the complaint.  The defendant appeals.

On appeal, the defendant contends that it did not have actual or constructive notice of the alleged dangerous condition of the tree prior to the accident (see Harris v. Village of E. Hills, 41 N.Y.2d 446, 449, 393 N.Y.S.2d 691, 362 N.E.2d 243;  Piscitelli v. County of Suffolk, 121 A.D.3d 878, 994 N.Y.S.2d 388;  Austin v. Town of Southampton, 113 A.D.3d 711, 979 N.Y.S.2d 127;  see also Connolly v. Incorporated Vil. of Lloyd Harbor, 139 A.D.3d 656, 657, 32 N.Y.S.3d 185;  Hilliard v. Town of Greenburgh, 301 A.D.2d 572, 754 N.Y.S.2d 29).  “To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it” (Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774;  see Sasso v. Village of Bronxville, 208 A.D.3d 910, 912, 174 N.Y.S.3d 436).  “Where there is no evidence that the tree showed any visible, outward signs of decay prior to the accident, it cannot be said that the municipality had constructive notice of a defect.  Rather, a manifestation of decay must be readily observable in order to give rise to a duty to prevent harm” (Sasso v. Village of Bronxville, 208 A.D.3d at 912, 174 N.Y.S.3d 436 [citation omitted];  see Jourdain v. Metropolitan Transp. Auth., 219 A.D.3d 876, 877–878, 195 N.Y.S.3d 503;  Pozzani v. Village of S. Blooming Grove, 189 A.D.3d 1094, 133 N.Y.S.3d 828).

Here, the defendant failed to establish, prima facie, that it did not have actual or constructive notice of the alleged dangerous condition of the tree (see Machicado v. Paradise, 112 A.D.3d 680, 681, 977 N.Y.S.2d 66).  Accordingly, the Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint without regard to the sufficiency of the plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

We decline the defendant's request to take judicial notice of weather conditions on the date of the accident based upon information contained in three webpage links (see generally Beaton v. City of New York, 196 A.D.3d 625, 626, 151 N.Y.S.3d 678).  The defendant's remaining contention is not properly before this Court.

BARROS, J.P., DOWLING, VENTURA and MCCORMACK, JJ., concur.