Opinion
02-05-2016
Nia S. JAGROOP, Appellant, v. Sharmila RAMDHANNY and THE CITY OF NEW YORK, Respondents.
Law Office of Peter E. Torres, New York City (Peter E. Torres of counsel), for appellant. Nicolini, Paradise, Ferretti & Sabella, PLLC, Mineola (Joshua H. Stern of counsel), for Sharmila Ramdhanny, respondent. Zachary W. Carter, Corporation Counsel, New York City (Francis F. Caputo and Elizabeth I. Freedman of counsel), for City of New York, respondent.
Law Office of Peter E. Torres, New York City (Peter E. Torres of counsel), for appellant.
Nicolini, Paradise, Ferretti & Sabella, PLLC, Mineola (Joshua H. Stern of counsel), for Sharmila Ramdhanny, respondent.
Zachary W. Carter, Corporation Counsel, New York City (Francis F. Caputo and Elizabeth I. Freedman of counsel), for City of New York, respondent.
PRESENT: PESCE, P.J., WESTON and ALIOTTA, JJ.
Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered February 18, 2014. The order denied plaintiff's motion for summary judgment and granted defendants' separate motions for summary judgment dismissing so much of the action as is against each of them. ORDERED that the order is affirmed, without costs.
On the evening of December 27, 2011, plaintiff's car, while parked in the driveway or yard directly in front of plaintiff's mother's house, was damaged by a branch or branches which fell from a tree, the trunk of which stood behind a fence in the yard of the adjoining premises. In January 2012, plaintiff commenced this small claims action against defendant Sharmila Ramdhanny, who owned the adjoining premises, seeking to recover the principal sum of $1,816.18 for damage caused by the falling branch. Upon subsequently learning that the City of New York claimed ownership of the tree, plaintiff, on December 4, 2012, filed a notice of claim against the City. On December 6, 2012, the City was added as a defendant to the action. On December 19, 2012, the City disallowed the claim as untimely. Following discovery, plaintiff moved for summary judgment, and defendants moved separately for summary judgment dismissing so much of the action as is against each of them. Plaintiff's motion was denied, and defendants' motions were granted.
Since plaintiff's claim against the City was founded upon tort, as a condition precedent to her action against the City, plaintiff was obligated to file a notice of claim within 90 days after the claim arose (see General Municipal Law § 50–e[1][a] ; Stiff v. City of New York, 114 A.D.3d 843, 980 N.Y.S.2d 550 [2014] ; Matter of Ryan v. New York City Tr. Auth., 110 A.D.3d 902, 973 N.Y.S.2d 312 [2013] ; see also Brownstein v. County of Westchester, Dept. of Parks, Recreation & Conservation, 51 A.D.2d 792, 380 N.Y.S.2d 62 [1976] ; Costa v. Town of Babylon, 6 Misc.3d 7, 787 N.Y.S.2d 810 [App.Term, 2d Dept., 9th & 10th Jud.Dists.2004]; Poulmentis v. Town of Southampton, 1 Misc.3d 128[A], 2003 N.Y. Slip Op. 51556[U], 2003 WL 23145918 [App.Term, 2d Dept., 9th & 10th Jud.Dists.2003] ). Plaintiff failed to file a timely notice of claim. While the court, upon application, could have extended plaintiff's time to serve a notice of claim to 1 year and 90 days after the date of the occurrence (see General Municipal Law §§ 50–e[5] ; 50–i), plaintiff failed to apply for such an extension, even though she had been made aware of the untimeliness of her notice of claim within the 1–year and 90–day period. Plaintiff's late notice of claim, which was served without leave of court, was a nullity (see Cassidy v. Riverhead Cent. Sch. Dist., 128 A.D.3d 996, 997, 11 N.Y.S.3d 102 [2015] ; Matter of Katsiouras v. City of New York, 106 A.D.3d 916, 918, 965 N.Y.S.2d 533 [2013] ; Decoteau v. City of New York, 97 A.D.3d 527, 947 N.Y.S.2d 343 [2012] ). As plaintiff failed to fulfill the condition precedent to suing the City, we conclude that the Civil Court's denial of plaintiff's motion for summary judgment as against the City, and its award of summary judgment dismissing so much of the action as is against the City, rendered substantial justice between plaintiff and the City (see CCA 1804, 1807 ).
The City claimed ownership of the tree, and there was evidence that the Commissioner of the New York City Department of Parks and Recreation had assumed full control of the tree (see Administrative Code of City of N.Y. § 18–105), thus suggesting that defendant Ramdhanny had been relieved of duties with respect to the tree. However, we need not decide who, or what entity, owned or controlled the tree, since, in any event, plaintiff failed to make a prima facie showing of her entitlement to judgment as a matter of law as against defendant Ramdhanny. In contrast, Ramdhanny did make a prima facie showing of entitlement to judgment as a matter of law dismissing the complaint as against her (see CPLR 3212[b] ; Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ; Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ).
In her affidavit in support of her motion for summary judgment and in opposition to plaintiff's motion, Ramdhanny stated that, prior to the incident in issue, she had never noticed any decay, hanging branches, loose limbs or discoloration on the tree. This statement was adequate to meet her prima facie burden of showing that there had been no readily observable manifestation of decay, and that Ramdhanny could not be charged with either actual or constructive notice of the allegedly defective condition of the tree (see Pulgarin v. Demonteverde, 63 A.D.3d 1026, 880 N.Y.S.2d 571 [2009] ; Lahowin v. Ganley, 265 A.D.2d 530, 696 N.Y.S.2d 241 [1999] ). In opposition to Ramdhanny's motion and in support of her own motion for summary judgment, plaintiff failed to come forward with any objective evidence—such as dated photographs of the tree, taken prior to the accident and depicting readily observable disease, or the report of an expert (see Skalafuris v. Arpadi, 43 Misc.3d 128[A], 2014 N.Y. Slip Op. 50484[U], 2014 WL 1272215 [App.Term, 2d Dept., 9th & 10th Jud.Dists.2014] )—showing that Ramdhanny had had actual or constructive notice of the tree's dangerous condition (see Sleezer v. Zap, 90 A.D.3d 1121, 933 N.Y.S.2d 764 [2011] ; Pulgarin v. Demonteverde, 63 A.D.3d 1026, 880 N.Y.S.2d 571 ). Although plaintiff presented evidence that her mother had previously complained to defendant Ramdhanny about damage that the tree's roots had caused to her sewer pipes, plaintiff failed to demonstrate that this damage had any bearing on the health of the tree. Moreover, assuming that the tree was not under the exclusive control of the City, we note that plaintiff's mother had a right to prune the branches that overhung her property (see Kuney v. Christian, 42 Misc.3d 136[A], 2014 N.Y. Slip Op. 50120[U], 2014 WL 470144 [App.Term, 2d Dept., 9th & 10th Jud.Dists.2014]; Hileman–Rizzo v. Krysty, 10 Misc.3d 135[A], 2005 N.Y. Slip Op. 52118[U], 2005 WL 3500854 [App.Term, 2d Dept., 9th & 10th Jud.Dists. 2005]; see also 1 N.Y. Jur. 2d, Adjoining Landowners § 65 ). Plaintiff also failed to establish that the tree constituted a nuisance (see Turner v. Coppola, 102 Misc.2d 1043, 1045, 424 N.Y.S.2d 864 [Sup.Ct., Nassau County 1980], affd. 78 A.D.2d 781, 434 N.Y.S.2d 563 [1980] ).
We therefore conclude that the Civil Court's award of summary judgment dismissing so much of the action as was against Ramdhanny rendered substantial justice between plaintiff and Ramdhanny (see CCA 1804, 1807 ).
Accordingly, the order is affirmed.