Bandier v. Tim Blenk Tree Care, Inc.

• Decision Date: 09 December 2008
• Docket Number: 2007-08979.
• Citation: 2008 NY Slip Op 09739,57 A.D.3d 595,869 N.Y.S.2d 215
• Parties: MARTIN BANDIER, Appellant, v. TIM BLENK TREE CARE, INC., Respondent.
• Court: New York Supreme Court — Appellate Division

57 A.D.3d 595

869 N.Y.S.2d 215

2008 NY Slip Op 09739

MARTIN BANDIER, Appellant, v. TIM BLENK TREE CARE, INC., Respondent.

2007-08979.

Appellate Division of the Supreme Court of New York, Second Department.

December 9, 2008.

In an action to recover damages for breach of contract and negligence, the plaintiff appeals from an order of the Supreme Court, Suffolk County (R. Doyle, J.), dated July 24, 2007, which granted the defendant's motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The plaintiff owns an estate in Southampton which is bordered by tall privet hedges and round privet bushes. In February 2004 the defendant entered into a plant management contract to maintain the plaintiff's estate. Under the terms of the contract, the defendant was required to have a trained diagnostician periodically visit the plaintiff's estate in order to inspect trees and shrubs for insect and disease activity, treat controllable insect and disease problems, and make recommendations for additional services that might increase the vigor of the plants. During the summer of 2004, while the contract was in effect, the plaintiff's privet hedges and bushes suffered from an infestation of prunicola scale, an insect which pierces the leaves or stems of plants and sucks out their juices. Other properties in Southampton also suffered from an unprecedented level of scale infestation in the summer of 2004, prompting the local horticultural community to develop new strategies and techniques to control the pest. The plaintiff alleges that the scale infestation caused such extensive damage to his privet hedges and bushes that many of them had to be replaced.

The plaintiff subsequently commenced this action alleging that the defendant had breached the plant management contract by failing to adequately monitor the privet hedges and bushes on his property and treat them for scale infestation. The plaintiff also sought damages on the theory that the defendant had negligently caused the scale infestation by heavily spraying the property to treat another type of insect infestation. After depositions were conducted, the defendant moved for summary judgment, contending that it properly diagnosed the scale outbreak on the plaintiff's property and treated it in accordance with prevailing horticultural industry standards. In support of the motion, the defendant submitted an expert affidavit from a consulting arborist who concluded, inter...