Legal Question in Personal Injury in New York

Taking Town to small claims over their trees in a right-of-way that came down on my property during storm and I had to pay to cut/remove - trying to recover these costs. Town brought motion for summary judgment (motion to dismiss), arguing no liability in matter "in absence of negligence, which was not alleged in my notice of claim". They claim no notice of any dangerous/defective tree condition. *Has not been granted yet. I need to file motion to oppose. Can I oppose by using doctrine of res ipsa loquitur as they are negligent due to lack of periodic maintenance of right of way as numerous downed trees litter their right of way?


Asked on 3/12/12, 8:17 pm

1 Answer from Attorneys

You will need to prove the Town was in some way on notice of a diseased or weakened tree or tree limb before the damage was done. If the subject tree is no longer standing, perhaps a photo exists, which you can show to an arborist (tree expert). If there had been prior complaints to the town, or the photos (older the better) show the tree to have signs of disease or decay, you might be able to prove notice.

Best, M. E. Zuller

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Answered on 3/13/12, 4:41 am


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