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Figueroa-Corser v. Town of Cortlandt - 2013 NY Slip Op 4306, 107 A.D.3d 755, 967 N.Y.S.2d 744 (App. Div.)

Rule:

The duty of a municipality to maintain its roadways in a reasonably safe condition extends to trees which are adjacent to the road and which could reasonably be expected to pose a danger to travellers. However, liability does not attach unless the municipality had actual or constructive notice of the dangerous condition. To provide constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it. In cases involving liability for fallen trees, a manifestation of non-visible decay must be readily observable in order to give rise to a duty to prevent harm. 

Facts:

John Corser, the husband of the plaintiff Lourdes M. Figueroa-Corser, was killed when a tree fell on his car as he was driving on Furnace Dock Road located within defendant Town of Cortlandt ("Town"). The tree was located on property whose title owner was defendant Furnace Dock, Inc. ("Furnace Dock"); at the time of the accident, the property was in contract to be sold to defendant Blitman Development Corp. ("Blitman"). Figueroa-Corser filed a wrongful death suit in New York state court against defendants. The Town filed a motion foe summary judgment, which was granted. However, after granting Figueroa-Corser's motion to reargue her opposition to summary judgment motion, based on her claim that the trial court initially misapprehended a fact in determining the motion and, denied the motion Town's motion. By separate orders, the trial court motions for summary judgment filed by Furnace Dock and Blitman. Defendants appealed.

Issue:

Did the trial court by denying the Town's motion for summary judgment dismissing the complaint against it?

Answer:

No.

Conclusion:

The appellate division affirmed the order granting Figueroa-Corser leave to reargue and thereafter denying the Town's motion summary judgment. The court ruled that while the Town established its prima facie entitlement to judgment as a matter of law by submitting evidence that it did not have actual or constructive notice of the alleged dangerous condition of the subject tree, Figueroa-Corser submitted an expert affidavit that raised a triable issue of fact as to whether the Town had constructive notice of the alleged dangerous condition of the tree. The court affirmed the denial of Furnace Dock's motion for summary judgment; the order denying Blitman's summary judgment motion was reversed, and the court granted that motion.

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