Opinion
570232/07.
Decided January 29, 2008.
Defendant appeals from a judgment of the Small Claims Part of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), entered on or about December 4, 2006, after trial, in favor of plaintiff and awarding her damages in the principal sum of $3,121.75.
PRESENT: McKEON, P.J., DAVIS, HEITLER, JJ.
Judgment (Fernando Tapia, J.), entered on or about December 4, 2006, reversed, without costs, and judgment directed in favor of defendant dismissing the action.
Liability was improperly imposed below, there being no claim or showing that defendant had actual or constructive notice of any defective condition in the tree on her property before it fell onto plaintiff's car ( see Ivancic v Olmstead, 66 NY2d 349, 350-351, cert denied 476 US 1117). Since plaintiff cannot prevail "according to the rules and principles of substantive law" (CCA 1807), the small claims action must be dismissed.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.