Legal Question in Civil Litigation in New York

Re: safety hazard caused by trees

You do not have a legally recognizable claim against your neighbor.

In essence, you have two causes of action; one in tresspass and one in negligence.

With regard to negligence, only if the tree was defective could you assert a cause of action.

The same applies with tresspass. There can be no tresspass for a healthy tree that overhangs a neighbor's property.

The action, Ivancic v. Olmstead 66 NY2d 349 (1985)summerizes the law as follows:

"1. No liability attaches to a landowner whose tree falls outside of his premises and injures another unless there exists actual or constructive knowledge of the defective condition of the tree; thus, plaintiff, who seeks to recover for injuries sustained when an overhanging limb from a neighbor's tree fell and struck him, failed to establish a prima facie case of negligence where plaintiff made no claim that defendant had actual knowledge of the defective nature of the tree and offered no competent evidence from which the jury could properly find that defendant had constructive notice of the alleged defective condition of the tree; since there is no evidence that would put a reasonable landowner on notice of any defective condition of the tree, the fact that defendant landowner testified that she did not inspect the tree for over 10 years is irrelevant; on the evidence presented, even if defendant were to have inspected the tree, there were no indicia of decay or disease to put her on notice of a defective condition so as to trigger her duty as a landowner to take reasonable steps to prevent the potential harm.

2. In an action by plaintiff, who seeks to recover for injuries sustained when an overhanging limb from defendant neighbor's tree fell and struck him, Trial Term did not err, as a matter of law, in refusing to submit to the jury the cause of action sounding in common-law trespass; there is evidence that defendant did not plant the tree, and the mere fact that defendant allowed what appeared to be a healthy tree to grow naturally and cross over into plaintiff's parents' property airspace, cannot be viewed as an intentional act so as to constitute trespass."

Mike.

Re: safety hazard caused by trees

First, if any branches from your neighbors trees are hanging over your property you can cut them to the property line. A more powerful remedy would be to commence an action against your neighbor for maintaining a nuisance which unreasonably interferes with the use and enjoyment of your property. Such an action would be commenced in the Supreme Court in the County in which the property is located. Given the hazardous conditions her trees continue to create, you can seek immediate relief by way of Order To Show Cause. This is an accelerated motion which would enable you to seek immediate relief. It is significant that you have put her on notice of the danger created by these conditions. If, heaven forbid, someone was to fall onto the pool cover [a very dangerous event] she might be held responsible for any injuries suffered. The same would apply if one were to slip and fall on the debris dropped by her trees. On the other hand, you have a continuous duty to maintain your property in a safe condition. If someone visits your property and slips & falls on the debris, they might sue you, since you were on notice of the condition. Please note that this applies, not only to guests whom you invite, but also to visitors you wouldn't expect, or dont even know. If for example a house alarm rings at your house or a neighbors, and a police officer responds by investigating the rear of your property and slips & falls, he or she can sue you. The same would apply for any serviceman for the electric company, water department, or even the new tax reassessment people who have been hired by the county to inspect each and every house in Nassau County for the purpose of reassessment.

To discuss this matter further, please feel free to call for a free consultation.

Andrew J. Campanelli

[email protected]

516-746-1600