From Casetext: Smarter Legal Research

Pulgarin v. Demonteverde

Appellate Division of the Supreme Court of New York, Second Department
Jun 23, 2009
63 A.D.3d 1026 (N.Y. App. Div. 2009)

Opinion

No. 2008-01330.

June 23, 2009.

In an action to recover damages for personal injuries, etc., the plaintiff Jose F. Pulgarin appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Agate, J.), dated December 7, 2007, as granted that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted by him.

Tanner Ortega LLP (John V. Decolator, Garden City, N.Y., of counsel), for appellant.

Nicolini, Paradise, Ferretti Sabella, Mineola, N.Y. (John J. Nicolini and John Ferretti of counsel), for respondents.

Before Skelos, J.P., Santucci, Balkin and Leventhal, JJ., concur.


Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiff Jose F. Pulgarin was injured when a tree on the defendants' property fell onto the car that he was operating. In cases involving fallen trees, a property owner will be held liable only if he or she knew or should have known of the dangerous condition of the tree ( see Ivancic v Olmstead, 66 NY2d 349, 351, cert denied 476 US 1117; Harris v Village of E. Hills, 41 NY2d 446, 450; Lillis v Wessolock, 50 AD3d 969; Lahowin v Ganley, 265 AD2d 530; Golan v Astuto, 242 AD2d 669). The defendants established, prima facie, their entitlement to judgment as a matter of law by submitting evidence sufficient to demonstrate that they could not be charged with either actual or constructive notice of the alleged defective condition of the tree ( see Ivancic v Olmstead, 66 NY2d at 351; Lahowin v Ganley, 265 AD2d 530; Asnip v State of New York, 300 AD2d 328; Golan v Astuto, 242 AD2d 669). In opposition, Pulgarin failed to submit evidence sufficient to raise a triable issue of fact as to whether there were readily-observable manifestations of decay ( see Ivancic v Olmstead, 66 NY2d at 351; Lahowin v Ganley, 265 AD2d 530; cf. Crawford v Forest Hills Gardens, 34 AD3d 415).


Summaries of

Pulgarin v. Demonteverde

Appellate Division of the Supreme Court of New York, Second Department
Jun 23, 2009
63 A.D.3d 1026 (N.Y. App. Div. 2009)
Case details for

Pulgarin v. Demonteverde

Case Details

Full title:JOSE F. PULGARIN, Appellant, et al., Plaintiff, v. JOEL DEMONTEVERDE et…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jun 23, 2009

Citations

63 A.D.3d 1026 (N.Y. App. Div. 2009)
2009 N.Y. Slip Op. 5309
880 N.Y.S.2d 571

Citing Cases

Pagan v. Jordan

The Supreme Court granted the plaintiff's cross motion and denied Alice's motion as academic. Alice…

Jagroop v. Ramdhanny

In her affidavit in support of her motion for summary judgment and in opposition to plaintiff's motion,…