Another Summary Judgment Win for Fleischner Potash

Partner Dan Stewart won summary judgment in a Suffolk County premises liability case where plaintiff alleged traumatic brain injury and cognitive defects. Plaintiff, a high-earning professional, alleged that the defendants failed to properly maintain a tree branch. While walking on the adjacent sidewalk, plaintiff hit her head on the branch. Plaintiff claimed various cognitive injuries along with past and future lost earnings, creating the potential for a particularly dangerous damages case.

In FP’s moving papers, Mr. Stewart relied on testimony from plaintiff and the defendant property owners to argue that (1) the tree was an open and obvious condition, (2) the defendants did not owe plaintiff a duty of care with regard to the tree, and (3) there was no prior notice of a dangerous condition. In opposition to the motion, plaintiff submitted the affidavit of an arborist who opined that the tree was improperly pruned, and should have been removed entirely. FP picked apart the expert’s affidavit, pointing out that the authorities referenced in the affidavit actually contradicted the arborist’s conclusions. In addition, the arborist’s conclusion about removal of the tree would have led to an unreasonable precedent requiring removal of countless other trees, bushes, utility poles, mailboxes, traffic signs, and fence posts. The court agreed with FP’s arguments and dismissed the case in its entirety.

If you’d like to learn more about this result, or other ways Fleischner Potash can help your claims team, please contact Dan Stewart at or (646) 520-4200.

A copy of the decision can be found below.