| Davis v Stone |
| 2008 NY Slip Op 50168(U) [18 Misc 3d 134(A)] |
| Decided on January 29, 2008 |
| Appellate Term, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Defendant appeals from a judgment of the Small Claims Part of the Civil Court of the City of
New York, Bronx County (Fernando Tapia, J.), entered on or about December 4, 2006, after trial,
in favor of plaintiff and awarding her damages in the principal sum of $3,121.75.
PER CURIAM
Judgment (Fernando Tapia, J.), entered on or about December 4, 2006, reversed, without costs, and judgment directed in favor of defendant dismissing the action.
Liability was improperly imposed below, there being no claim or showing that defendant had
actual or constructive notice of any defective condition in the tree on her property before it fell
onto plaintiff's car (see Ivancic v Olmstead, 66 NY2d 349, 350-351 [1985], cert
denied 476 US 1117 [1986]). Since plaintiff cannot prevail "according to the rules and
principles of substantive law" (CCA 1807), the small claims action must be dismissed.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: January 29, 2008