New York Cases January 08, 2019: Salzberg v. Sena

Case Description

Peter T. Salzler, Esq., Michael B. Kramer & Associates, Attorneys for Plaintiffs 150 E. 58th St., No.1201, New York, NY 10155

Jonathan B. Nelson, Esq., Dorf & Nelson, Attorneys for Defendants, 555 Theodore Fremd Ave., Rye, NY 10580

Charles D. Wood, J.

This matter was referred to the undersigned by the Trial Ready Part on September 7, 2018, for an inquest on damages. As held by the Decision and Order of the Supreme Court, Westchester County (Jamieson, J), entered June 8, 2018, the plaintiffs' attempt to acquire a portion of defendants' adjoining real property through adverse possession was denied and their complaint dismissed, and the defendants were granted summary judgment on their counterclaim for trespass, with the court finding that plaintiffs cut down at least one tree on the defendants' property.

This court had the opportunity to assess the credibility of the witnesses, and the truthfulness and accuracy of the testimony, whether contradictory or not ( Lelekakis v. Kamamis , 41 AD3d 662, 664 [2nd Dept 2007] ). After several days of hearing the testimony of the parties, their arborists/tree experts and a surveyor, and considering the evidence and the applicable law, the court finds as follows.

The parties are adjoining neighbors in the village of Croton-on-Hudson, New York. The Decision and Order of Justice Jamieson determined that plaintiffs were liable for unlawful tree removal and trespass. The claims fall into two categories. First is the damage for cutting of trees, of which there are two parts: the "big" tree—a native black cherry tree, or prunus serotine ; and the three or four smaller cherry trees that were cleared . This analysis is guided by Real Property Actions and Proceedings Law § 861. Second is the damages due to the plaintiffs' trespass: the permanent surveying monuments and temporary stakes that were destroyed or disappeared; the installation of a fence, and the defendants' inability to use their land during this litigation, all exacerbated by plaintiffs' attempt in this litigation to claim a portion of the defendants' land by adverse possession.

The Trees

It is undisputed that the plaintiffs paid to have the Big Black Cherry Tree ("BBCT") cut down by Care of Trees, and that it was a fully developed tree of between 30 feet and 60 feet in height, and of approximately 2 feet in diameter at the stump. A photograph of the BBCT's stacked "rounds", shows that the BBCT was, in fact, rather substantial—certainly larger than the average amateur weekend lumberjack would attempt to cut down with a chainsaw bought on impulse at Home Depot or Lowe's (Exh. A). Plaintiffs, through their arborist, claim that the BBCT was in decline or dying. Through their own arborist, defendants claim that the BBCT was fully functional and through his postmortem examination of its stump, they argue that it showed no signs of decline, nor reason to be removed. Defendants theorize that the plaintiffs removed the tree to gain a better view of the Hudson River. Plaintiffs claim that the BBCT was leaning toward their residence and was in danger of falling.

RPAPL § 861 is entitled "Action for cutting, removing, injuring or destroying trees or timber, and damaging lands thereon." The statute itself makes no mention of the health of trees. Pursuant to RPAPL § 861(1), damages may be assessed at $250 per tree, regardless of the health of the tree. The health of the tree is, however, relevant for determining stumpage value (its use as timber) or replacement value (a healthy tree having far greater value than a dead or dying one). To determine the appropriate damages by either of these methods, the court must determine whether the BBCT was viable and healthy, as defendants claim, or whether it was dying, as plaintiffs claim. On this issue, the court finds that the BBCT was healthy. Even if the BBCT had displayed some signs of distress, the photographs show no obvious signs of decay, and certainly no indication that the BBCT was in any imminent danger of falling on the plaintiffs' residence (Exh. A & B). Notably, the best evidence of the BBCT's condition could have been provided by the plaintiffs, but they took no contemporaneous photographs of the tree before cutting it down.

Defendants elect to seek replacement value of the BBCT and other trees. While the legislature did not specifically spell out or use the term "replacement cost" as a measure of damages, "any permanent and substantial damage caused to the land" can reasonably include restoration or replacement of a tree ( see St. George's Operating & Improvement Co., Inc. v. Wilson 81 AD3d 632 [2d Dept 2011] ). The court now turns to what a healthy tree like the BBCT is worth. Not surprisingly, the parties have vastly different opinions. Plaintiffs claim that RPAPL § 861(1) limits the appropriate measure of damages to stumpage value, which is negligible . Defendants claim that replacement value is more appropriate. In support of this argument, the defendants' arborist testified that the replacement value is $40,000 to $60,000.

Defendants further argue that the court must award treble damages pursuant to RPAPL § 861(1), noting that Justice Jamieson's finding that "plaintiffs have cut down a tree that they knew belonged to defendants" makes RPAPL § 861(2) --which would eliminate treble damages--inapplicable. On this narrow issue, the court agrees with the defendants, that, pursuant to Judge Jamieson's findings, the plaintiffs cannot as a matter of law establish that they had cause to believe that the land was theirs. The doctrine of law of the case applies, and RPAPL § 861(2) is unavailable to limit the plaintiffs' exposure to treble damages.

However, exactly what damages can the defendants have trebled? Defendants argue that blanket treble damages must be applied to any award of damages. This court finds that such an expansive reading of the statute is not correct. The statute, in relevant part provides:

an action may be maintained against such person for treble the stumpage value of the tree or timber or two hundred fifty dollars per tree, or both and for any permanent and substantial damage caused to the land or the improvements thereon as a result of such violation.

RPAPL § 861(1) (emphasis added) The Second Department recently tacitly agreed with a party's concession that only stumpage value is to be trebled in Fair Chase Holdings II, LLC. v. County of Dutchess , (165 Ad3d 1237 [2 Dept 2018] ). Thus, the options provided by the legislature do not afford the court the option of trebling the award for "permanent and substantial damage caused to the land," as defendants argue. As a matter of statutory construction, " treble the stumpage value or two hundred fifty dollars per tree, or both," is less than ideally contained in the same run-on sentence. Even so, the word "treble" neither modifies $250 per tree, nor "and for any permanent and substantial damage" ( see generally Vanderwerken v. Bellinger , 72 AD3d 1473, 1476 [3d Dept 2010] ).

Likewise, plaintiff's argument that only stumpage value should be awarded, is simply out of touch with both the facts of this case and the overall reality of cases arising in the metropolitan areas of New York State. While some New York City dwellers may believe that anything north of McLean Avenue in Yonkers is "upstate New York," and the Saw Mill River and Saw Mill River Parkway pay homage to an earlier part of Westchester's history, the fact is that logging and timber cutting for commercial purposes is virtually nonexistent in Westchester County in the 21st century. Therefore, in the overwhelming majority of cases--like this one--where a tree or trees are cut down by neighbors, the offender does not do so for profit. Thus, even treble damages for stumpage value falls far short of deterring the conduct that RPAPL § 861 seeks to redress. In this case, treble the stump value of the BBCT is less than the hourly rate of almost any attorney in this county. The more logical and appropriate measure of damages, which embraces tort law's goal of restoring the injured party to the condition that they enjoyed before the tort, is replacement value ( see generally E.J. Brooks Company v. Cambridge Security Seals , 31 NY3d 441,444-448 [2018] ).

Accordingly, the court finds that the defendants are entitled to the statutory damages of $250 per tree for the 4 smaller trees ($1,000), and for the BBCT ($250), for a total of $1,250, under RPAPL § 861(1), plus the reasonable replacement value of restoring the defendants' land to its former condition with another big black cherry tree in the same location to help obscure their view of the plaintiff's house ( see Western NY Land Conservancy, Inc v. Cullen , 66 AD3d 1461 [4th Dept 2009] ). The court will also award replacement cost of the smaller trees, which the evidence showed had a far smaller impact on the defendants' enjoyment of their property. The defendants' expert testified less than confidently that $5,000 was the replacement value for each of the smaller trees. As the finder of fact, weighing the testimony from the experts and the parties, the court awards $1,000 each, for a total of $4,000 for the smaller trees.

The court rejects the plaintiff's attorney's contention in his summation, that the court cannot award damages for the smaller trees due to the counterclaim failing to specifically seek said damages. A fair review of the first counterclaim put plaintiffs on notice that multiple trees were cut down, and here, the plaintiffs do not dispute that they hired a third party to remove four smaller trees.

As for the BBCT, the arborists varied on their estimates of its height, with plaintiffs' expert saying "50-60 feet" and defendants' expert saying "30-40 feet". Likewise, they differed on the cost of replacement. Plaintiffs' expert testified that in New York City, the Parks Department only allocates a maximum of $3,000 for basic "sidewalk trees." Defendants' expert testified that depending on the height, the actual cost of replacement is a range of $40,000 to $60,000. He testified that it takes approximately 20 years to grow a black cherry tree to that size; it must be transported and transplanted; supported with the use of wires, pulleys; and there are complicated logistics of actually traversing the defendants' property to the desired transplant location. After considering all the relevant factors, the court awards $40,000 for the BBCT replacement cost. Therefore, the total tree damages assessed against the plaintiffs is $45,250.

As noted in Halstead v. Fournia , (160 AD3d 1178 [3d Dept 2015] ), reasonable costs associated with maintaining the action are also recoverable under RPAPL § 861(2), but in keeping with the general rule in New York, attorney's fees are not ( see Matter of A.G. Ship Maintenance Corp. v. Lezak , 69 NY2d 1 [1986] ). Having found here that RPAPL § 861(2) is unavailable to plaintiffs, the court is troubled to discover that costs are only available under this section, which is frankly, illogical and backward. The way the statute stands, costs are only awardable if the tortfeasor proves by clear and convincing evidence their good faith, so that they should not pay treble damages on stumpage value. Thus, a brazen, recalcitrant, unapologetic, adjoining landowner that cuts down a tree in bad faith--so long as the tree was not an ideal candidate for lumber--will not have to pay reasonable costs of litigation, while the landowner that makes an honest mistake and proves so, pays reasonable costs. This result is preposterous, creating a scenario where no one in their right mind would invoke RPAPL § 861(2), to show good faith, because it will cost them more. Here, stumpage value of all five trees would fail to cover the cost of the filing fee for the Index Number and RJI, much less the cost of the experts that the wronged party had to compensate. This anomaly in the text of RPAPL § 861(2), whereby costs are assessed there, rather than in § 861(1), must be addressed by the other co-equal branches of government in New York so that good faith action is not disproportionately punished more than bad faith action.

Trespass

In her Decision and Order, entered June 8, 2018, Justice Jamieson also held that Plaintiffs committed trespass upon the land of the defendants. Both parties agree that plaintiffs extended and repaired an existing dilapidated fence, which defendants removed. Defendants also testified that temporary survey markers and permanent concrete survey monuments were removed or destroyed, causing additional expense in bringing the surveyor to mark the property again. Further, the plaintiffs, by their own claim, physically trespassed "open[ly], notorious[ly], exclusive[ly] and hostile[ly]" by fencing in a portion of the defendants' land, and then they also sought to convert that portion of defendants' land to themselves as plaintiffs in this underlying adverse possession action ( See Amended Complaint). With similar shortcomings of RPAPL § 861, the legislature has not specifically provided appropriate guidance for the measure of damages under RPAPL Article 5. Adverse Possession is defined in § 501, and various other sections provide guidance for whether and how adverse possession can be established, but sorely lacking is any mention of damages to be awarded against the unsuccessful plaintiff that attempts to use the courts "offensively to deprive a landowner of their real property" (Winter & Loeb, Practice Commentaries, McKinney's Cons Law of NY, Book 49 ½, RPAPL 501, at 81). Therefore, no damages can be awarded under RPAPL § 501, and the court defers to the legislature to address conduct that for all intents and purposes, amounts to a consequence-free roll of the dice to steal real property.

Relating solely to the trespass, the proper measure of damages for trespass is determined by assessing the value of the area actually occupied by the trespasser ( Morales v. Riley , 28 AD3d 623 [2d Dept 2006], citing Litwin v. Town of Huntington , 248 AD2d 361 [2d Dept 1998] ), for the period of time that the owner is kept out of possession ( Rand Prods. Co. v. Mintz 69 Misc 2d 1055 [Civ. Ct NY County 1972), citing DeCamp v. Bullard 159 NY 450 [1899] ). These damages may be determined to be the greater of either the rental value or comparable useable value, whichever is greater ( Morales v. Riley , 28 AD3d at 624 ). Here, no evidence was adduced at trial to support any award for lost rental value, and even if it had been, it is likely to have been minimal. Therefore, only an award of damages for the damages in connection with the surveying stakes and monuments, and removal of the fence and debris, which the defendants proved by a preponderance of the evidence, is appropriate. Based upon the credible testimony of Kenneth Sena, the defendants are entitled to $5,000 in damages.

The court hereby awards the amount of $50,250 for defendants. The parties shall settle the judgment in accordance with this Decision and Order within 30 days of the date this decision is served with notice of entry and plaintiffs shall file proof of service on the defendants thereafter with the Clerk of this Court.

This constitutes the Decision and Order of the Court.