Legal Question in Civil Litigation in New York
Roots cut by neighbor, my tree falls on my house
A new neighbor extended and widened his driveway. his landscaper dug a trench 18'' deep right along my fence and
on his side of the property line. The large anchor roots
on west side of my trees were cut. 3 days later a windstorm
from the south west blew a 51 ft tall 8 inch diameter pine
and caused it to uproot and fall to the north east onto
my house. There is very little damage to the house. The ball
of the tree pulled up my wire mesh fence. My neighbor said
he is not legally responsible. I asked him to call his homeowners insurance co. The company sent me a denial letter
saying my neighbor did not cut the roots himself and did not
tell the landscaper to do so. They suggested i sue the landscaper directly. I thought the neighbor was responsible
for his landscaper while working on his property. I thought
the insurance company should pay me and then recover from
the landscapers insurance co. What should I do next ?
note: the driveway enlargement is for the use illegal tenants in an illegal accessory apartment and the denial letter is dated 1/13/05 but was delivered 1/27/05 possibly backdated to conform to fair claims practices law.
2 Answers from Attorneys
Re: Roots cut by neighbor, my tree falls on my house
The neighbor and his insurance compmnay and the landscaper should all be sued. In my opinion, the court will determine if the job could have been done without removing the tree's anchor. If so, then the neighbor's insurance will pay. If not, then probably the landscaper's insurance will pay.
You will win this case.
In any event, the insurance companies will make you miserable.
Determine the amount of money for repairs (including the loss of the tree which is about 2500$ - how much would a new one cost) - and if less than 5,000, take it to small claims. Small claims has a simplified CPLR (court procedure). If over 5,000, then you will definitely need the help of a lawyer.
The law is simple, but they have already served notice that they intend to make you miserable with court procedure.
You are welcome to a consultation for no fee.
Re: Roots cut by neighbor, my tree falls on my house
There are several possibilities. What was the proximate cause of the damage? If it was the storm, it was an act of god, and may not be covered.
If it was the landscaper cutting the roots, then he created a dangerous condition. If he was under the supervision, direction and control of the homeowner, then the neighbor may be liable too, but not necessarily just because he hired the gardener.
You must assess the damage: take photos of everything, the cut roots, the damage and keep the repair bills. If there is not much damage,
less then $7,500.00 you might as well sue in small claims court.
January 13, is so close to the 27th it almost isn't worth mentioning.
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