Dear Lynbrook Home Owner:
Before you sue the neighbor, make certain of the facts involving the tree and damage to your property, as at some point you will need an expert to back up your claims.
Retain an Arborist to examine your property and the neighbor's tree. There may be a simple solution for the encroachment of roots into your property that are far less complex than a lawsuit.
Since you have insurance, your insurance may also cover your damage claim and so you should check out if you insured your property against this type of damage.
You may find many Arborists in your neighborhood.
The answer provided to you is in the nature of general information. The general proposition being that you should try to avoid a bad outcome if you can.
A tree owner can be held liable if s/he knew or reasonably should have known about the damage caused or likely to be caused by her/his tree. This means that if a tree owner is aware of a problem or a potential problem, then the tree owner should take reasonable actions to remove the problem. If the tree owner fails to take reasonable actions, then the tree owner can be held responsible for the damage caused by the tree. The health of the tree is irrelevant to the determination of tree owner’s liability as it is understood that a healthy tree can cause damage just as a dead or decaying tree can.
THE FOLLOWING COMMENTS ARE MADE UNDER THE ASSUMPTION THAT AN EXPERT HAS DETERMINED THAT THE TREE ROOTS ARE IN FACT THE CAUSE OF THE DAMAGE TO YOUR PROPERTY.
It is best to give the tree owner written notice of the problem and a request to take care of damage. If the tree owner does nothing then you have the right to trim or remove any part of the tree – including the roots – that enter onto your property. Therefore, you can act without the tree owner’s permission to remove the roots extending onto your property. Beware of damaging the tree or making it unstable as this could cause further damage. It’s best to work with an arborist to contain the roots while saving the tree. However, if the tree is compromised the greater responsibility of removing it will fall on the tree owner.
If you sue for “nuisance” or for “negligence” and seek damages, the Court will determine what the tree owner’s reasonable action should have been and decide accordingly. The tree owner could be held liable for the cost of repairs or replacement. However, your role is important as well. The Court may lessen the damages if you could have taken actions on your own and failed to do so. A Court may question the severity of the problem if you took no action of your own.
There was recently a case on Long Island concerning damage to a retaining wall caused by a neighbor’s tree. A judge ordered that the neighbor with the damaged retaining wall was entitled to damages for the wall repair only if the tree owner refused to remove the tree. The Court made clear those tree owners who act reasonably in removing or repairing a tree would not be held liable to future damage.