Neighbors regularly and routinely litigate disputes over fallen trees and branches. A recent case had a twist: the dispositive proof was photographed from Google Maps.
Terry L. Young sued Fredrick Wide, Rory O'Flaherty, Elizabeth O'Flaherty, Arnoldo's Tree Service and Outside Space for property damage and trespass based on a tree branch from the adjacent property, owned by Wide, falling on the rear portion of the roof of her property; the unpermitted removal of an apple and a fig tree from Young's property; and the erection of a fence which purportedly encroaches on her property.
Young owns the premises at 43 Chauncey Street, Brooklyn, New York. The neighboring property, 45 Chauncey Street, was purchased and "flipped" by Wide and sold to Rory and Elizabeth O'Flaherty.
Wide established entitlement to summary judgment as a matter of law. He provided copies of the deeds filed with the Office of the New York Register of the City of New York, which establish that Wide purchased the property on April 10, 2014, and sold the property to Rory and Elizabeth O'Flaherty on May 13, 2015. Wide further provided Google Street View photographs, which demonstrated that there was no branch on the rear portion of Young's roof in May 2012; however, a branch was visible in the October 2013 photograph and the September 2014 photograph. Those photographs also showed a large branch, still on the tree, was visible in the May 2012 image but was no longer visible in the October 2013 image. There was a rebuttable presumption that Google Map photographs were a fair and accurate depiction of locations.
Wide stated that the branch had already fallen onto Young's roof when he purchased the property in April 2014. It was also established that the O'Flahertys, the subsequent owners, hired Arnoldo to remove trees. The O'Flahertys also hired Outside Space, who erected the fence.
In opposition, Young failed to raise a triable issue of fact. He failed to rebut the presumption that the Google photographs were fair and accurate depictions of the location. Young identified his property in each of those Google photographs during his deposition. Although he contended that the Google photographs did not accurately depict that one particular branch fell onto his roof because they were taken from differing angles-but failed to provide evidence to support his position. The branch in the Google photographs appeared to have a "Y" shape, much like the photograph that Young presented. Furthermore, he testified that although branches and leaves often fell into the back yard of his property, a branch only fell on his roof one time. And Young failed to address the showing that he did not own the property until April 2014. These Google photographs showed the branch on Young's roof as early as October 2013, approximately six months before Wide purchased the neighboring property.
Young was silent as to Wide's proof that the O'Flahertys hired Arnoldo, who cut trees down, and Outside Space, who installed the fence. Young's contention that discovery was incomplete, as Wide had not been deposed, was insufficient. Wide provided an affidavit. Young did not establish that the motion was premature since he failed to offer an evidentiary basis to suggest that the deposition might lead to relevant evidence. Accordingly, Wide's motion for summary judgment was granted.
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