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October 2014

New York Team Wins Pre-Answer Motion to Dismiss in Personal Injury Suit

On Sept. 29, Gordon & Rees New York partner Joseph Salvo and associate Lauren Wilke won a pre-answer motion to dismiss on behalf of their client, an arborist for a village on Long Island, N.Y.  The plaintiff in the action suffered severe injuries when a tree fell on his car and pinned him in the vehicle while he was driving on a roadway through the village.  The injuries suffered included injury to the plaintiff’s shoulder, requiring major reparative surgery and a shoulder replacement.

In the complaint, the plaintiff alleged that the arborist was negligent in inspecting the trees on the property along the roadway.  A year prior to the plaintiff’s accident, the property owner requested the arborist to inspect two trees on her property to obtain a permit to remove those trees.  The arborist did his inspection of the two trees and issued a permit allowing the property owner to remove them.  However, the two trees were located approximately 150 feet from the roadway the plaintiff was traveling along at the time of the accident.  Despite this, the plaintiff alleged that the arborist had a duty to inspect each tree on the property when he went to inspect the other two trees at the request of the property owner.  The plaintiff further alleged that if the arborist had inspected each tree on the property, he would have discovered that the tree that ultimately caused the plaintiff’s injuries was decaying and should have been removed.

The Gordon & Rees team argued that the arborist did not owe the plaintiff a duty, as the services he performed more than a year prior to the plaintiff’s accident involved the inspection of two trees on the property, neither of which were alleged to cause the plaintiff’s injuries.  Moreover, the Gordon & Rees team argued that even if the arborist owed the plaintiff a duty, he could not have been the proximate cause of the plaintiff’s injuries, as the inspection of the property he conducted was more than one year prior to the plaintiff’s accident and the arborist had issued a tree removal permit to the property owner and did not control whether the trees were removed after issuing the permit. 

After initially denying the motion to dismiss because the plaintiff had amended the complaint, the Gordon & Rees team moved for re-argument of the order denying dismissal of the action, which the New York Supreme Court granted and which ultimately led to the dismissal of the matter against the arborist.  In its opinion, the court agreed with Gordon & Rees’s argument that the arborist did not owe the plaintiff a duty.  In addition, the court focused on the fact that even if the arborist owed the plaintiff a duty and breached that duty, he could not have been the proximate cause of any injury, as it would be mere speculation to assume that the arborist’s negligence was the proximate cause of the plaintiff’s accident or injuries.

Joseph Salvo
Lauren Conston Wilke



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