This is a small claims action by a motor vehicle owner against the property owner for negligence involving damages allegedly caused by a fallen tree branch. The defendant moves for summary judgment pursuant to CPLR 3212.

Plaintiff is the owner of a motor vehicle. On November 13, 2009, plaintiff's vehicle was parked in the parking lot owned by the defendant Rye City School District. A tree limb fell upon plaintiff's vehicle resulting in damage to the vehicle. Plaintiff filed this Small Claims action on January 11, 2010. By letter dated January 15, 2010, Plaintiff filed a Notice of Claim with the defendant pursuant to General Municipal Law section 50. The defendant, through its insurer, denied the claim stating that there was no evidence of negligence on the part of the defendant.

In support of its motion, defendant submitted its attorney's affirmation dated March 3, 2010 that outlined the procedural background of the case and attached documents concerning plaintiff's claim, and the affidavit of defendant's business manager, sworn to March 2, 2010, that described the defendant's tree trimming and pruning program and asserted that the tree from which the branch had fallen showed no signs of disease or decay and that at no time prior to November 13, [*2]2009 had the defendant received any complaints about that tree or its limbs.

At the Court's March 3, 2010 session, in light of plaintiff's pro se status, the plaintiff was advised of the type of proof needed to oppose the defendant's motion and was given until March 31, 2010 to submit answering papers. Upon defendant's request, that submission date was adjourn to May 19, 2010. On May 13, 2010, plaintiff submitted an unsworn letter dated May 12, 2010. Plaintiff's letter attached: (1) an email from defendant's business manager advising defendant's employees they are not to be approached to sign affidavits in this case; (2) documents relating to the defendant having paid a claim in 2005 for damages caused by a fallen tree branch in 2004; and (3) a letter from plaintiff dated March 8, 2010 advising defendant that the trees on the property are a liability and will cause harm. Plaintiff failed to offer any evidence that the tree the dropped its limb was decayed or defective. Plaintiff also failed to offer any evidence that the defendant had actual or constructive notice of a defect in that tree. The only evidence of "notice" offered by plaintiff's was concerning damages paid by the defendant to another arising out of an unspecified tree dropping a limb on the other's car over five years ago.

This action is procedurally defective. Under General Municipal Law § 50-e(1)(a) a Notice of Claim must be filed "[i]n any case founded upon tort . . . as a condition precedent to the commencement of an action or special proceeding against a public corporation, as defined in the general construction law ^[FN1] . . . within ninety days after the claim arises. While plaintiff timely filed the Notice of Claim, their action was premature. General Municipal Law § 50-I(1) provides that "[n]o action . . . shall be prosecuted or maintained against a . . . school district for . . . damage to real or personal property alleged to have been sustained by reason of the negligence or wrongful act of such . . . school district . . . unless, (a) a notice of claim shall have been made and served upon the . . . school district in compliance with section fifty-e of this chapter, (b) it shall appear by and as an allegation in the complaint or moving papers that at least thirty days have elapsed since the service of such notice and that adjustment or payment thereof has been neglected or refused. . . . Here the action was started before the service of the [*3]Notice of Claim.

Even if the procedural deficiencies are ignored, it benefits not the plaintiff.

Once a moving party has made a prima facie showing of its entitlement to summary judgment, the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (see, Alvarez v. Prospect Hosp., 68 NY2d 320, 324, 508 NYS.2d 923 [1986]. In opposition to this motion, plaintiff only offers no evidentiary support that defendant had notice of a defect in the particular tree that dropped its limb. This is wholly inadequate. "Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient." Zuckerman v. City of New York, 49 NY2d 557 [1980]. He must come forward come forward, assemble, lay bare and reveal his proof of evidentiary facts showing there is a bona fide issue requiring trial. Hoot Group, Inc. v. Caplan, 9 AD3d 448, 779 NYS2d 922 [2nd Dept. 2004] & Castro v. Liberty Bus Bus Co., 79 AD2d 1014 [2nd Dep't 1981]. This plaintiff has not done.

The State and its political subdivisions are generally subject to the same duty of reasonable care imposed on private landowners. Preston v. State, 59 NY2d 997, 466 NYS2d 952 [1983 ]. It is well settled that the State, as a landowner, must maintain its "property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk" ( Miller v. State of New York, 62 NY2d 506, 513 [1984], quoting Preston v. State of New York, 59 NY2d 997, 998 [1983] ). However, the State "is not an insurer against every injury that might occur on its property" Covington v. State of New York, 54 AD3d 1137, 1137-1138 [2008] ), and "[n]egligence cannot be presumed from the mere happening of an accident". To establish a prima facie case against the owner, plaintiff must be able to demonstrate that the defendant had created the condition that caused the accident or that it had actual or constructive notice of the condition. Peralta v. Henriquez, 100 NY2d 139, 760 NYS2d 741 [2003]. To hold a property owner liable for injuries from a falling tree, one must establish that the property owner had actual or constructive notice of a defective condition of the tree. Ivancic v. Olmstead, 66 NY2d 349, 497 NYS2d 326 [1985]. [*4]

There is no claim that the defendant caused the condition of the tree in question here. The School District certainly did not create or design the tree.^[FN2] There is no allegation or evidence proffered by the plaintiff that the defendant had actual notice of any decay or disease in the particular tree that dropped its limb nor any other defect in the tree. Plaintiff offers no proof of any prior written notice to the defendant of the defective condition of the particular tree in question. At best, all plaintiff offers is that an unidentified tree on defendant's property, but not necessarily the tree that dropped a limb on plaintiff's car, dropped a limb on another car some five years earlier. This is simply not enough to create a duty on the part of the defendant with respect to the tree in question. A landowner from whose property a branch fell and injured plaintiff was under no duty to consistently check all trees for non-visible decay and would be under an obligation to take reasonable steps to prevent harm if manifestation of decay was readily observable. Ivancic , supra . There is no indication of any visible defect or decay offered by plaintiff here.

This case is remarkably similar to Bannerman v. Village of Hastings on Hudson, 10 Misc 3d 1068(A), 814 NYS2d 559 [Just.Ct., Vill. of Hastings, 2006] where a municipality was found not liable for a fallen tree based upon a similar lack of proof.

Unfortunately for plaintiff, the law does not provide a remedy for every occurrence. As New York State's Court of Appeals held in Sheldon v. Sherman, 42 NY 484, 1870 WL 7733 [1870]):

"There is a large class of cases, in which injury is suffered by a party, where the law gives no redress. If a tree growing upon the land of one is blown down upon the premises of another, and in its fall injures his shrubbery, or his house, or his person, he has no redress against him upon whose land the tree grew." Id. at 486.

Our society has organized itself based on the premise that a person is [*5]responsible for his or her own actions. Thus, if someone has a duty to do or refrain from doing something, but fails to do so, he or she may be liable to one injured by a breach of that duty. Absent a duty, there is no liability. That however does not leave the injured party without a remedy. We have also organized our society to cover that risk by the creation of the opportunity to share the risk and spread the risk among others. We call that insurance. A party is generally free to purchase a contract of insurance that will reimburse him or indemnify him from that risk. The option to obtain insurance is an option, not a requirement. If you choose to bear the risk of loss, you may refrain from purchasing insurance. If you choose to bear some of the risk, but nor all of the risk, you may do so by purchasing an insurance contract with policy limitations, such as a deductible amount or a cap on recovery. The cost of the insurance will vary with the amount of coverage and the extent of policy limitations. Here, the plaintiff had the opportunity to protect himself from the risk of falling tree limbs, floods, or even meteors, had he chosen to do so. That he did not do so forms no basis to impose liability on another.

There is no triable issue of any material fact and as a matter of law one party is entitled to prevail. Therefore, summary judgment is warranted.

Accordingly, this Court grants the defendant's motion for summary judgment pursuant to CPLR 3212 and grants judgment in favor of defendant and dismisses Plaintiff's small claims complaint. It is therefore,

ORDERED that the plaintiff's complaint is dismissed, and it is further

ORDERED that a judgment for defendant is granted.

May 19, 2010_________________________

JOSEPH L. LATWIN, J.C.C.

ENTERED

__________________

Mary Jo Garrity