Opinion
November 30, 1992
Appeal from the Court of Claims (Lengyel, J.).
Ordered that the judgment is affirmed, with costs.
The claimants contend that the trial court's finding that the State had not had constructive notice of the defective condition of a twin tulip tree — a portion of which fell on the claimants' vehicle as they drove on the Saw Mill River Parkway — was unsupportable. We disagree. While the State has a duty to maintain its highways and their adjacent areas in a reasonably safe condition for the benefit of travelers (Friedman v State of New York, 67 N.Y.2d 271, 283; Carroll v State of New York, 157 A.D.2d 697, 698; Rinaldi v State of New York, 49 A.D.2d 361, 363), no liability will attach by reason of a dangerous condition located thereon which causes injury unless it is established that the State had actual or constructive notice of the condition, and thereafter failed to take reasonable measures to correct the condition (see, e.g., Pesce v City of New York, 147 A.D.2d 537, 538-539). In order to constitute constructive notice, "`a dangerous condition must have been visible and apparent and must have existed for a sufficient length of time prior to the accident to permit [the] defendant's employees to discover and remedy it'" (Ferris v County of Suffolk, 174 A.D.2d 70, 75; Lesser v Manhattan Bronx Surface Tr. Operating Auth., 157 A.D.2d 352, 357, affd sub nom. Fishman v Manhattan Bronx Surface Tr. Operating Auth., 79 N.Y.2d 1031).
The record indicates that the twin tulip tree involved in this case was situated approximately 28 feet from the westernmost edge of the southbound lanes of the Saw Mill River Parkway, on an embankment of 8 to 10 feet in height. It was uncontested at the trial that the tree was plainly visible from the parkway. However, contrary to the claimants' contention, the fact that this tree was a "double leader tree" — one in which two trunks grow from a common base — was insufficient, in and of itself, to render that tree inherently hazardous such that the State would be charged with notice of a dangerous condition. Indeed, the trial evidence established that, from the parkway, the tree appeared to be healthy, notwithstanding its peculiar, although not unique, structure. Only a close inspection could have revealed that the core of the twin tulip tree was decayed, rotted, and infested with carpenter ants. However, the claimants failed to establish that the State's inspection procedures as to trees adjacent to the Saw Mill River Parkway — which included viewing the trees while driving past them, and looking for apparent defects (e.g., dead or decayed trees; trees leaning precariously toward the parkway; or storm-damaged or uprooted trees) — were unreasonable or departed from the standard of reasonable care (see, Harris v Village of E. Hills, 41 N.Y.2d 446; Siegel v State of New York, 56 Misc.2d 918, 923).
We have examined the claimants' remaining contentions, consisting of challenges to evidentiary rulings, and find that none of the alleged errors is of sufficient magnitude to warrant a new trial (see, Rogan v Federated Dept. Stores, 141 A.D.2d 522; Cotter v Mercedes-Benz Manhattan, 108 A.D.2d 173; 2A Weinstein-Korn-Miller, N Y Civ Prac ¶ 2002.02). Bracken, J.P., Copertino, Pizzuto and Santucci, JJ., concur.