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Zaremba v. Stanco

Absent Proof, Adjoining Homeowner Has no Liability for Property Damage From Falling Tree

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The Plaintiffs have brought this action for the property damage and tree removal costs caused by defendant’s tree which fell on their property. FINDING OF FACTS The subject tree was hanging over the plaintiffs’ property. The plaintiffs put the defendant on written notice of their concern about the tree. The plaintiffs were given the opportunity to prove that the subject tree was decayed or defective, but have failed to do so. APPLICABLE LAW There is a large class of cases, in which injury is suffered by a party, where the law gives no redress. If a tree growing upon the land of one is blown down upon the premises of another, and in its fall injures his shrubbery, or his house, or his person, he has no redress against him upon whose land the tree grew, Sheldon v. Sherman, 42 N.Y. 484, 486, (1870). The exception to that general rule of law is when a defendant has been put on notice of the subject tree being on the neighboring property and that the subject tree is defective or diseased. It is plaintiff’s burden to prove this. Cicio v. Pollack, 51 Misc. 3d 131A, 36 N.Y.S.3d 46 (Appellate Term 1st Dept.2016). No evidence has been produced that the tree was defective, only the allegation that the defendant was put on actual notice that the subject tree will cause harm, McKeever v. City of Rye, 35 Misc. 3d 1208(A), 1208A, 950 N.Y.S.2d 724, (City Court of Rye 2012). There is no claim that the defendant caused the tree to fall on plaintiffs’ property. There is no claim that the manifestation of decay was readily observable. Absent said proof the defendant did not have a duty to take reasonable steps to prevent any potential harm that may have occurred to the plaintiffs on this property as a result of the tree falling on their property, Golan v. Astuto, 242 A.D.2d 669, 662 N.Y.S.2d 576 (2nd Dept. 1990). Absent a duty, there is no liability. Decision After Hearing Based upon all of the foregoing, plaintiffs complaint is dismissed. So Ordered: Dated: December 2, 2021

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