Conflicting Tree-Tripping Stories Get Case Dismissed
A divided state appeals panel has dismissed a lawsuit filed by a New York City Housing Authority resident who claimed he tripped on a tree well in his complex, saying he undermined his case by changing his account of the accident almost two years after it happened.
The plaintiff, Guillermo Robles, has maintained that he initially identified the wrong tree well as the site of the accident because of misleading photographs.
Justices David Friedman (See Profile), Richard Andrias (See Profile) and Leland DeGrasse (See Profile) joined in the majority. Justice Rolando Acosta (See Profile) dissented, joined by Justice Helen Freedman (See Profile).
Robles alleges that he tripped and fell against a tree in a tree well in April 2008 while crossing a courtyard in front of his building at 178 Avenue D in Manhattan. He was 73 at the time. A woman who lived nearby, Lynda Negron, saw Robles fall and called his grandson, Kenneth Robles Jr., who accompanied his grandfather to the hospital. The elder Robles needed surgery.
Pursuant to General Municipal Law §50-h, he filed a notice of claim against NYCHA and appeared for a 50-h hearing. At that hearing, he was shown photographs of a tree well that he identified as the site of the accident. He maintained that the concrete perimeter around the tree well was raised and defective, creating a dangerous condition. In July 2009, Robles filed suit.
At the end of March 2010, however, he served a bill of particulars identifying, for the first time, a different tree well in another part of the courtyard as the site of the accident. This was based on a report prepared by his expert witness, who inspected the courtyard in April 2008. Nevertheless, at his deposition he again identified the first tree well as where he tripped.
In opposing NYCHA's motion to summary judgment, Robles submitted affidavits from Negron and from Kenneth Robles, who said the tree identified in the bill of particulars was the correct one.
NYCHA moved to dismiss the case, arguing that it had been prejudiced by Robles' initial, incorrect notice of claim, or, alternatively, that Robles was trying to create a false issue of fact by identifying a different tree well in order to overcome summary judgment.
Madden denied that motion, and NYCHA appealed.