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Is There A Duty To Prune?

June 13, 2016
By: Frank Scahill

Can a Homeowner be sued for failing to trim their tree which obscures the view of a stop sign? The answer is, it depends where you live. The rule in New York is that: "The municipality has a duty to maintain its roads and highways in a reasonably safe condition (see Stiuso v. City of New York, 87 NY 2d 889, 639 NYS 2d 1009 [1995]; Carrillo v. County of Rockland, 11 AD 3d 575, 782 NYS 2d 668 [2d Dept. 2004]), which includes a responsibility to trim the growth of foliage within a roadway's right-of-way to ensure the visibility of stop signs (see Nichols-Sisson v. Windstar Airport Service, Inc., 99 AD 3d 770, 952 NSY 2d 223 [2d Dept. 2012]; Finn v. Town of Southamptom, 289 AD 2d 285 , 734 NYS 2d 215 [2d Dept. 2001]). A property owner is not under a common-law duty to control vegetation on its property from obstructing the view of motorists at an intersection (see Clementoni v. Consolidated Rail Corp., 8 NY 3d 963, 836 NYS 2d 507 [2007]). It is only in those cases where the property owner is under a statutory or regulatory obligation to prevent vegetation from visually obstructing the roadway that liability may attach by reason of the property owner's failure to comply therewith (see Lubitz v. Village of Scarsdale, 31 AD 3d 618, 819 NYS 2d 92 [2d Dept. 2006]).

In Szela v. Courtier, 278 A.D.2d 485, 485, 718 N.Y.S.2d 80, 81 (2000), the appellants were the owners of real property located at the intersection of Sommerset Avenue and Hawthorne Street in Mastic, New York. The applicable ordinance, the Brookhaven Town Code § 85-378, required only that "no tree which may cause danger to traffic by obscuring or obstructing visibility at intersections shall exceed two and one-half (2 1/ 2) feet in height" In Szela, plaintiffs failed to demonstrate any issue of fact as to whether the appellants violated this ordinance and the order denying summary judgment to the Homeowner was reversed on appeal and the case dismissed.

In Nichols-Sisson v. Windstar Airport Serv., Inc., 99 A.D.3d 770, 772-73, 952 N.Y.S.2d 223, 226 (2012), the accident occurred in Richmond County. Here, the Appellate Division dismissed the case against the Homeowner, Dora Homes, Inc., stating, "The Supreme Court also should have granted that branch of the motion of GLM and Dora Home which was for summary judgment dismissing the complaint and all cross claims insofar as asserted against Dora Homes. Under some circumstances, a property owner may be held liable for hazardous conditions created by an independent contractor, where the property owner exercises control over the work of the contractor (see White v. Village of Port Chester, 92 A.D.3d 872, 940 N.Y.S.2d 94). Here, however, the contractor, GLM, demonstrated that the tree did not constitute a hazardous condition when it was planted, and the plaintiffs raised no triable issues of fact in response to that prima facie showing (see Hartofil v. McCourt & Trudden Funeral Home, Inc., 57 A.D.3d at 945-946, 871 N.Y.S.2d 299). Dora Homes established, prima facie, its entitlement to judgment as a matter of law, by showing that there is no basis for holding the property owner vicariously liable in this case, and, in opposition, the plaintiffs did not raise a triable issue of fact."

In the Town of Huntington, the Town Code provides: "If any wall or fence, bush, tree or shrub located on private property creates a vision obstruction to the operator of any motor vehicle seeking to enter onto or leave a Town road, such shall be deemed to be a violation of the Code." (Huntington Code §TC6-7)

Faced with a motion to dismiss the complaint against the Homeowner, Judge Rebolini issued an Order dated March 3, 2016, which denied the defendants' motion for Summary Judgment on the issue of liability in Bekas v Tjornhom (27641/10). The Court noted: "Here, triable issues of fact exist as to whether the Higgins defendants violated the duty created by Town of Huntington Code (the "Code") §TC6-7 and, if so, whether such violation was a proximate cause of the accident (see Noiler v. Peralta, 94 AD 3d 833, 941 NYS 2d 703 [2d Dept. 2012]; Pelak v. Sollin, supra). This section of the Code provides that if a tree "located on private property creates a vision obstruction to the operator of any motor vehicle seeking to enter onto or leave a Town road, such shall be deemed to be a violation of the Code. "The Higgins defendants have failed to establish that they were not in violation of the Code. Although they deny that the tree was on their property, in their respective depositions the Higgins defendants could not confirm that the tree did not belong to them, and they have not proffered a survey. Their testimony simply established that the tree existed when they moved in several years prior to the accident. Similarly, the testimony of Alfred Gorski, the tree foreman employed by the Town on the date of the subject accident, does not shed any light on whether the tree was planted by the Town and/or on Town property.

It is established law that violation of an ordinance is "evidence of negligence which the jury could take into consideration with all other evidence on the subject" (Major v. Waverly & Ogden, 7 NY 2d 332, 226, 197 NYS 2d 165 [1960], adopted by Elliot v. City of New York, 97 NY 2d 730, 724 NYS 2d 379 [2001]). Code §TC6-7 imposes a duty on property owners that may give rise to tort liability for damages proximately caused by its violation (see Lubitz v. Village of Scarsdale, supra; McSweeney v. Rogan, 209 AD 2d 386, 618 NYS 2d 430 [2d Dept. 1994]). The Higgins defendants have failed to make out a prima facie case entitling them to summary judgment dismissing the complaints as asserted against them in Action 2; Action 3 and Action 4. Thus, having failed to satisfy their initial burden, the motion must be denied regardless of the sufficiency of the plaintiffs' opposition papers (Alvarez v. Prospect Hosp., 68 NY 2d 320, 508 NYS 2d 923 [1986])."

Read the decision here.

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