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

Joan LAHOWIN, et al., respondents, v. Robert GANLEY, et al., appellants.

Decided: October 25, 1999

DANIEL W. JOY, J.P., WILLIAM D. FRIEDMANN, GLORIA GOLDSTEIN and LEO F. McGINITY, JJ. Robert P. Sweeney & Associates, Uniondale, N.Y. (Paul Robertson of counsel), for appellants. Stephan Persoff, Carle Place, N.Y., for respondents.

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Nassau County (Lockman, J.), dated September 10, 1998, which denied their motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The plaintiff Joan Lahowin was injured when a tree on the defendants' property blew over and fell onto the car that she was operating.   In support of their motion for summary judgment, the defendants made a prima facie showing that there was no readily-observable manifestation of decay, and thus that they could not be charged with either actual or constructive notice of the defective condition of the tree.   Without such notice, there can be no liability (see, Ivancic v. Olmstead, 66 N.Y.2d 349, 497 N.Y.S.2d 326, 488 N.E.2d 72;  Golan v. Astuto, 242 A.D.2d 669, 662 N.Y.S.2d 576).   The affidavit of the plaintiffs' expert in opposition to the motion was insufficient to raise a triable issue of fact, as it was based on speculation and surmise.   As a result, the defendants are entitled to summary judgment dismissing the complaint.


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