Scott E. Mollen

Adverse Possession—Trespass—Tree Damages Assessed at $45,250 and Trespass Damages at $5,000—Neighbor Allegedly Sought Better View of the Hudson River

The plaintiffs had attempted to acquire part of the defendants adjoining real property by adverse possession. That claim was denied and their complaint was dismissed. However, the defendants were granted summary judgment on their counterclaim for trespassing. The court found that the plaintiffs had “cut down at least one tree on the defendant's property.”

Following a hearing, which included testimony of the parties, their arborists/tree experts and a surveyor, the court awarded the defendants damages in the amount of $50,250.

The parties were neighbors. The defendants claimed that the plaintiffs had wrongfully cut a “native black cherry tree…and three or four smaller cherry trees that were cleared.” The court's analysis was “guided by Real Property Actions and Proceedings Law §861.” In support of defendants' trespass damage claim, the defendants cited “permanent surveying monuments and temporary stakes that were destroyed or disappeared; the installation of a fence, and the defendant's inability to use their land during this litigation, all exacerbated by plaintiff's attempt in this litigation to claim a portion of the defendants' land by adverse possession.”

The plaintiffs had cut down a “big black cherry tree” (BBCT). The tree was “fully developed” and was between 30 and 60 feet in height and approximately two feet in diameter at the stump. The plaintiffs' arborist asserted that the BBCT was “in decline or dying.” The defendants claimed that the BBCT was “fully functional” and through an examination of the stump, they contended that the BBCT had shown “no signs of decline, nor reason to be removed.” The defendants asserted that the plaintiffs had removed the tree “to gain a better view of the Hudson River.” The plaintiffs alleged that the BBCT “was leaning toward their residence and was in danger of falling.”

RPAPL §861 is titled “Action for cutting, removing, injuring or destroying trees or timber, and damaging lands thereon.” The statute does not mention the health of 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, the court had to determine whether the BBCT was healthy, as defendants claimed, or whether it was dying, as the plaintiffs claimed.

The court found that the BBCT was “healthy.” The court noted that even if the BBCT had some “signs of distress, the photographs show no obvious signs of decay,” and there was no indication of the BBCT was “in any imminent danger of falling on the plaintiffs' residence….” The plaintiffs had not taken any contemporaneous photographs of the tree before cutting it down. The defendants sought replacement value of the BBCT and other trees.

The court explained that although the Legislature did not spell out or use the terms “replacement cost” as a measure of damages, “any permanent or substantial damage caused to the land” may “reasonably include restoration or replacement of a tree….”

The plaintiffs claimed that RPAPL §861(1) limits the measure of damages to “stumpage” value, which is negligible. The defendants argued that replacement value is more appropriate. The defendants' arborist testified that replacement value is $40,000-60,000. The defendants also asked for treble damages pursuant to RPAPL §861(1). The defendants cited a prior court ruling which found that the plaintiffs had cut down a tree that they knew “belonged to defendants.” The court held that such finding made RPAPL §861(2)—“which would eliminate treble damages—inapplicable.”

The court held that the plaintiffs may not now argue that they believed that the subject land was theirs, based on the doctrine of law of the case. Thus, RPAPL §861(2) is “unavailable to limit the plaintiffs' exposure to treble damages.”

The defendants contended that “blanket treble damages must be applied to any award of damages.” The court disagreed and noted that the statute provides: “an action may be maintained against such person for treble the stumpage value of the tree or timber or ($250) 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.”

The Appellate Division, Second Department had recently “tacitly agreed with a party's concession that only stumpage value is to be trebled….” Thus, the court held that the statute did not permit “trebling the award for 'permanent and substantial damage caused to the land',” as defendants had argued. The court rejected the plaintiff's argument that only “stumpage value should be awarded.”

The court reasoned that such position was “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.” The court noted that the “logging and timber cutting for commercial purposes is virtually nonexistent in Westchester County in the 21st century.” Therefore, in most cases, “where 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.”

The court further noted that the stump value of the BBCT “is less than the hourly rate of almost any attorney in this county.” And 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….”

Accordingly, the court held that the defendants were entitled to statutory damages of $250 per tree for smaller trees 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 (BBCT) in the same location to help obscure their view of the plaintiff's house….” The court also awarded the replacement cost of the smaller trees.

The court awarded $1,000 each, for a total of $4,000 for the smaller trees. Although the plaintiff's expert had testified that the NYC Parks Department only allocates a maximum of $3,000 for basic “sidewalk trees,” the defendants' expert testified that depending on the height, “the actual cost of replacement is a range of $40,000-$60,000.”

The defense expert explained that it takes approximately 20 years to grow a black cherry tree to the subject's size, a tree would have to be transported and transplanted; “supported with the use of wires, pulleys; and their complicated logistics of actually traversing the defendants' property to the desired transplant location.” The court awarded $40,000 for the BBCT replacement cost and therefore the total tree damages awarded to defendants was $45,250.

The court also stated that only the reasonable costs related to maintaining the action are recoverable since under RPAPL §861(2), is inapplicable. Thus, attorneys' fees are not recoverable. The court viewed such limitation was “illogical and backward.” The court stated that “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 would 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 disproportionally punished more than bad faith action.”

Additionally, the prior decision in this case held that the plaintiffs had committed trespass on the defendants' land. The plaintiffs had “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.”

The plaintiffs had admittedly fenced in a portion of the defendants' land. The court explained that “[w]ith similar short comings of RPAPL §861, the legislature has not specifically provided appropriate guidance for the measure of damages under RPAPL Article 5.” The court stated that no damages may be awarded under RPAPL §501 and that it would defer to the legislature “to address conduct that for all intents and purposes, amounts to consequence-free roll of the dice to steal real property.”

The court then held that the proper measure for damages for trespass is based on “assessing the value of the area actually occupied by the trespasser….” Such damages maybe determined to be “the greater of either the rental value or comparable usable value, whichever is greater….” Here, there was no evidence introduced to support any award for lost rental value “and even if it had been, it is likely to have been minimal.”

Therefore, based on damages incurred in connection with the “surveying stakes and monuments, and removal of the fence and debris,” the court awarded the defendants $5,000 in damages. Thus, the court awarded the defendants a total of $50,250 in damages.

Salzberg v. Sena, Supreme Court, Westchester Co., Case No. 50399/2016, decided Jan. 8, 2019, Wood, J.

 

Co-ops—Late Fee Equaling 30 Percent of Maintenance Deemed “Disproportionate to Loss” and Unenforceable Penalty

A co-operative corporation (co-op) petitioner commenced a nonpayment summary proceeding, seeking to recover “arrears and late fees in the amount of $1,885.00,” as of November 1, 2018 from the respondent shareholders. The co-op moved for summary judgment on its claim for possession and a money judgment for unpaid arrears and legal fees.

The co-op house rules provided that the co-op “reserves the right to impose from time to time such charges as it may deem appropriate for any violation, default or breach of the Occupancy Agreement, or for any violation by a member of petitioner's certificate of incorporation, by-laws, or rules and regulations.”

The co-op's board of directors (board) had passed a resolution “approving the institution of late fees.” The board imposed a $25.00 fee for payments received from the 11th to the 15th of each month. The late fee rises to $150.00 for payments received after the 15th of each month.

The co-op ledger indicated that the shareholders failed to make monthly payments on the first day of the month starting in February 2018. Additionally, beginning in February 2018, the shareholders either “made no payment of their maintenance charges or paid less than the amount due, and failed to make timely payments in direct violation of the occupancy agreement.”

The shareholders' ledger indicated that $150.00 late charge had been applied to a $494.00 maintenance charge. The court noted that such late charge amounted to “essentially 30 percent of the monthly maintenance.” The court found that the 30 percent late charge was “unenforceable as a penalty, since it is clearly disproportionate to any loss that petitioner may incur….” Thus, the court granted the co-op summary judgment to the extent of granting a fee in the amount $1,823.00, which represented maintenance fees reflected on the co-op's ledger.

Vernon Manor Co-op. Apts. Sec. II Inc. v. Brisport, City Court, Westchester Co., Case No. 3020-18, decided Jan. 16, 2019, Armstrong, J.

 

Scott E. Mollen is a partner at Herrick, Feinstein.