— A Norma Rosario, Plaintiff–Respondent, v. The City of New York, Defendant–Appellant, High View Owners Inc., et al., Defendants.

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Supreme Court, Appellate Division, First Department, New York.

— A Norma Rosario, Plaintiff–Respondent, v. The City of New York, Defendant–Appellant, High View Owners Inc., et al., Defendants.

1130 4 1130 4

Decided: January 21, 2014

Tom, J.P., Friedman, Acosta, Moskowitz, Gische, JJ. Michael A. Cardozo, Corporation Counsel, New York (Suzanne K. Colt of counsel), for appellant. Panzavecchia & Associates, PLLC, Garden City (Mark A. Panzavecchia of counsel), for respondent.

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Amended judgment, Supreme Court, Bronx County (Julia Rodriguez, J.), entered March 8, 2013, upon a jury verdict awarding plaintiff damages against defendant City of New York, and bringing up for review orders, same court and Justice, which denied the City's motions for a directed verdict and/or judgment notwithstanding the verdict, unanimously reversed, on the law, without costs, the motions granted, the judgment vacated, and the complaint dismissed.   The Clerk is directed to enter judgment accordingly.   Appeal from judgment, same court and Justice, entered June 6, 2012, unanimously dismissed, without costs, as superseded by the appeal from amended judgment.   To impose liability on defendant City for a defective condition of a tree well, plaintiff must show that the municipality either received prior written notice of the alleged defect or caused or created the defective condition through an affirmative act of negligence (see Tucker v. City of New York, 84 AD3d 640, 642–643 [1 st Dept 2011], lv denied 17 NY3d 713 [2011];  Oboler v. The City of New York, 8 NY3d 888, 889 [2007] ).

Plaintiff makes no claim that the City had prior written notice of the claimed defect.   There is no view of the evidence in the record that the City created the dangerous condition that caused plaintiff to fall.   Plaintiff's testimony is that on November 7, 2007, she fell after stepping into a hole in a tree well because the dirt was not even with the sidewalk.   She described the hole as being 3 inches in depth.   The evidence also shows that more than one year before the accident, the City identified and removed a dead tree in the tree well, leaving a stump behind.   The City inspector testified that although he determined that removal of the dead tree was necessary, he did not notice the level of the dirt in the well at that time.   The City inspector further testified that in his years of experience, the removal of trees would not disrupt the level of dirt in a tree well.   According to the City inspector, any disruption of the dirt in the tree well ensues when the tree stump is removed, which in this case did not occur until after plaintiff's accident.   Plaintiff had no personal knowledge of the cause of the differential of the dirt in the well (see Hammond v. City of New York, 100 AD3d 563, 564 [1 st Dept 2012], lv denied 21 NY3d 853 [2013];  Bielecki v. City of New York, 14 AD3d 301, 302 [1 st Dept 2005] ).   There is no basis on this record to conclude that the City caused or created that differential.

Plaintiff asserted at trial that the City's negligence consisted of the failure to remove the tree stump after it cut down the tree.   However, plaintiff did not fall on or over the stump, but testified that she tripped on a two or three inch hole between the level of the soil in the tree well and the level of the sidewalk.   Thus, the failure to remove the stump was not the proximate cause of the accident.

We also reject plaintiff's argument that the City created a hazard because the removal of the tree from the well without replanting created an optical illusion obscuring the tree well.   Leaving aside the parties' procedural arguments, the argument fails on its merits.   The only photograph of the condition, taken from some distance away, shows that the tree stump was above sidewalk level and visible.   It also clearly depicts the tree well, in line with another tree well on the street.   The tree well was in front of the building in which plaintiff resided.   Although plaintiff testified that she did not see the tree well before she fell, she also testified that there were containers on the street in her path that caused her to move to her left.   There is no view of this evidence to support a conclusion that the City, by cutting down a dead tree and leaving a tree stump, created a dangerous condition by obscuring the visibility of the tree well.

Here there was no conflicting evidence as to the cause of the accident, and the verdict could not have been reached by any fair interpretation of the evidence against the City (see Vavosa v. Stiles, 220 A.D.2d 363, 364 [1 st Dept 1995] ).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK