Handwerker v. City of New York

Dismissal of the complaint was not warranted since the record presents triable issues of fact as to whether defendants had constructive notice of the alleged condition of the tree. Plaintiff submitted evidence, including affidavits from experts, showing that there were clear, visible signs of the tree’s decay that existed for several years and that defendants performed work on the tree prior to the accident (see Harris v Village of E. Hills, 41 NY2d 446 [1977]; compare Clarke v New York City Hous. Auth., 282 AD2d 202 [2001]).

The court did not improvidently exercise its discretion in…