Opinion
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.
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, and SANDRA L. SGROI, JJ.
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 N.Y.2d 349, 350–351, 497 N.Y.S.2d 326, 488 N.E.2d 72 ; Harris v. Village of E. Hills, 41 N.Y.2d 446, 449, 393 N.Y.S.2d 691, 362 N.E.2d 243 ; Figueroa–Corser v. Town of Cortlandt, 107 A.D.3d 755, 757, 967 N.Y.S.2d 744 ; Collado v. Incorporated Town and/or Vil. of Freeport, 6 A.D.3d 378, 774 N.Y.S.2d 190 ; Quog v. Town of Brookhaven, 273 A.D.2d 287, 288, 708 N.Y.S.2d 715 ). In opposition, the plaintiff failed to submit evidence sufficient to raise a triable issue of fact (see Quog v. Town of Brookhaven, 273 A.D.2d at 288, 708 N.Y.S.2d 715 ; Lahowin v. Ganley, 265 A.D.2d 530, 696 N.Y.S.2d 241 ; cf. Ferrigno v. County of Suffolk, 60 A.D.3d 726, 727–728, 875 N.Y.S.2d 202 ; Crawford v. Forest Hills Gardens, 34 A.D.3d 415, 416, 824 N.Y.S.2d 150 ). Accordingly, the Supreme Court properly granted the City's motion for summary judgment dismissing the complaint insofar as asserted against it.