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Decided on January 4, 2013
Supreme Court, Queens County

30668/2010
Robert J. McDonald, J.
The following papers numbered 1 to 19 were read on this motion by the defendant for an order dismissing the plaintiff's complaint pursuant to CPLR 3211(a)(5) on the ground that the statute of limitations expired and for summary judgment pursuant to CPLR 3212; and plaintiff's cross-motion for an order compelling defendant to pay for and compensate the plaintiff for repairs and damages caused by trees on the defendant's property:
Papers Numbered
Notice of Motion-Affidavits-Memo of Law..............1 - 7

Cross-Motion and Affirmation in Opposition...........8 - 14

Affirmation in Opposition to Cross-Motion ..........15 - 19

Plaintiff, Klaus Koelling, is the owner of premises located at 166-44 25th Avenue, Whitestone, New York. The defendant, Frank D'Angelo, is the owner of adjoining property located at 166-48 25th Street, Whitestone, New York. Plaintiff commenced this action against the defendant, his next door neighbor, by filing a summons and complaint on December 1, 2010. The complaint seeks damages based upon two causes of action for trespass and nuisance. The plaintiff alleges that roots from the trees on the defendant's property caused the plaintiff's driveway to become [*2]raised, cracked and damaged. Issue was joined by service of the defendant's answer dated March 7, 2011. The plaintiff filed a note of issue on August 17, 2012.
In his verified bill of particulars the plaintiff states that the damage "began many years ago; some trees removed but one was left causing the damages which continued until the present." Plaintiff states that actual notice is claimed "many years ago and ongoing." Plaintiff is also claiming constructive notice, "ongoing." Plaintiff also states that he advised the defendant of the alleged condition and the damages "several times, personally over the last many years as well as the defendant's brother."
At his examination before trial, taken on January 25, 2012, plaintiff, Klaus Koelling, testified that he has been living at the premises located at 166-44 25th Avenue, Whitestone, New York, since 1961. He first moved into the premises with his mother and he inherited the property when she died in 1992. He states that the next door property is owned by the defendant, Frank D'Angelo, but that D'Angelo does not live on the premises and leases the house. He testified that his driveway is to the right of his house abutting Mr. D'Angelo's property. The driveway leads to plaintiff's one-car brick garage which is at the end of his driveway behind the main house.
The plaintiff identified photographs of the property which were taken in 2010. The photographs depict bushes from Mr. D'Angelo's property which are up against plaintiff's garage, and also depict an area of his driveway where the concrete blocks are out of alignment and have shifted. Plaintiff testified that in his opinion it was the roots from defendant's trees which grew underneath a portion of his concrete driveway causing it to shift. When asked when he first noticed that there was a misalignment he stated that it was in the "early, mid 1990's, and probably before." He stated that he knew there was a misalignment because he was tripping on it and the problem taken in 2009 and approximated that the slabs were now raised approximately 3

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