Ahearn v. Carroll

May 19, 2003
Versions:305 A.D.2d 523
759 N.Y.S.2d 344

—In an action to recover damages under RPAPL 861 for cutting trees, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Dutchess County (Dillon, J.), dated September 6, 2002, as denied that branch of their motion which was for partial summary judgment on the issue of the defendants’ liability for treble damages and, searched the record and granted partial summary judgment in favor of the defendants dismissing their claim for treble damages.

Ordered that the order is modified, on the law, by deleting the provision thereof which searched the record and granted partial summary judgment in favor of the defendants dismissing the claim for treble damages; as so modified, the order is affirmed insofar as appealed from, with costs to the appellants.

The defendants chopped down a number of trees on a parcel of land owned by the plaintiffs. Triable issues of fact exist as to whether the defendants had a “good-faith reasonable belief in [their] right to harvest the trees” (Hollenbeck v Genung, 198 AD2d 677, 678-679 [1993]). Further, there are issues of fact as to whether the injury suffered by the plaintiffs through the loss of those trees was “casual and involuntary,” so as to preclude an award of treble damages against the defendants (RPAPL 861 [2] [a]; see Arnott v Franzino, 302 AD2d 415 [2003]; Myers v NYNEX Corp., 257 AD2d 898 [1999]; Bass v Catucci, 196 AD2d 802 [1993]; Cunningham v Brischke, 167 AD2d 604, 605-606 [1990]; cf. Hollenbeck v Genung, supra; Whitaker v McGee, 111 AD2d 459 [1985]). Smith, J.P., H. Miller, Cozier and Rivera, JJ., concur.