Perciavalle v. Tapalaga

Full title: Cliff Perciavalle, appellant, v. Jose Tapalaga, et al., defendants, City…

Court: SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department

Date published: Dec 31, 2014

2014 N.Y. Slip Op. 9114 (N.Y. App. Div. 2014)

1 N.Y.S.3d 209

Opinion

2013-09140

12-31-2014

Cliff Perciavalle, appellant, v. Jose Tapalaga, et al., defendants, City of New York, respondent.

Edelman, Krasin & Jaye, PLLC, Carle Place, N.Y. (Kara Rosen of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow, Margaret G. King, and Ellen Ravitch of counsel), for respondent.

REINALDO E. RIVERA, J.P.

JOHN M. LEVENTHAL

CHERYL E. CHAMBERS

SANDRA L. SGROI, JJ. (Index No. 17919/11)

Edelman, Krasin & Jaye, PLLC, Carle Place, N.Y. (Kara Rosen of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow, Margaret G. King, and Ellen Ravitch of counsel), for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Kerrigan, J.), dated July 10, 2013, which granted the motion of the defendant City of New York for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed, with costs.

The plaintiff allegedly sustained personal injuries when a limb of a tree fell on him as he was walking on a sidewalk during a storm. The plaintiff commenced this action against the defendant City of New York, among others, to recover damages for personal injuries. The City moved for summary judgment dismissing the complaint insofar as asserted against it, contending that it did not have actual or constructive notice that the tree was in a hazardous condition. The Supreme Court granted the motion.

In support of its motion, the City established, prima facie, that it did not have actual or constructive notice that the subject tree was in a hazardous condition (see Ivancic v Olmstead, 66 NY2d 349, 350-351; Harris v Village of E. Hills, 41 NY2d 446, 449; Figueroa-Corser v Town of Cortlandt, 107 AD3d 755, 757; Collado v Incorporated Town and/or Vil. of Freeport, 6 AD3d 378; Quog v Town of Brookhaven, 273 AD2d 287, 288). In opposition, the plaintiff failed to submit evidence sufficient to raise a triable issue of fact (see Quog v Town of Brookhaven, 273 AD2d at 288; Lahowin v Ganley, 265 AD2d 530; cf. Ferrigno v County of Suffolk, 60 AD3d 726, 727-728; Crawford v Forest Hills Gardens, 34 AD3d 415, 416). Accordingly, the Supreme Court properly granted the City's motion for summary judgment dismissing the complaint insofar as asserted against it.

RIVERA, J.P., LEVENTHAL, CHAMBERS and SGROI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court