Opinion
No. 2003-662 ORC.
Decided June 7, 2004.
Appeal by defendant from a small claims judgment of the Justice Court, Town of Wallkill, Orange County (R. Freehill, J.), entered January 14, 2003, which awarded plaintiff the sum of $2,000.
Judgment unanimously reversed without costs and action dismissed.
PRESENT: McCABE, P.J., RUDOLPH and ANGIOLILLO, JJ.
In the instant small claims action, plaintiffs sought damages to replace their inflatable pool which was destroyed when a tree located on defendant's property fell during a storm. Plaintiffs also sought to recover the cost of removing the remnants of the tree in their yard and of abating an alleged nuisance created by two dead trees located on defendant's property which plaintiffs feared would fall onto their property and cause personal injuries and property damage.
"[I]t is established that no liability attaches to a landowner whose tree falls outside of his premises and injures another unless there exists actual or constructive knowledge of the defective condition * * *" ( Ivancic v. Olmstead, 66 NY2d 349, 350-351 [citations omitted]). At trial, plaintiffs presented no evidence that defendant had actual notice that the tree might fall. Nor did plaintiffs present any evidence from which it could be found that defendant had constructive notice regarding the condition of said tree ( see Piacquadio v. Recine Realty Corp., 84 NY2d 967; Ivancic, 66 NY2d at 350-351). As a result, plaintiffs were not entitled to recover for the damage to their inflatable pool or for the removal of the remnants of the tree in their yard.
In addition, we need not reach the issue of whether defendant was liable to plaintiffs for the removal of the two dead trees, since, in any event, there was a failure of proof as to damages inasmuch as plaintiffs only presented one itemized estimate as to the cost of removing same ( see UJCA 1804). In light of the foregoing, the judgment must be reversed and the action dismissed since the judgment did not render substantial justice between the parties according to the rules and principles of substantive law ( see UJCA 1807). Under the circumstances, we do not reach defendant's other contentions.