Bass v. CatucciBass v. Catucci
In an action to recover damages, inter alia, under RPAPL 861, the defendant William Catucci appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Westchester County (Nicolai, J.), dated March 18, 1991, as, upon an order of the same court dated March 12, 1991, granting the plaintiffs’ motion for summary judgment against him, awarded the plaintiff summary judgment and treble damages. The appellant’s notice of appeal from the order dated March 12, 1991, is deemed a premature notice of appeal from the judgment (see, CPLR 5520 [c]).
Ordered that the judgment is modified, on the law, by deleting the provision thereof awarding the plaintiffs treble damages; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Westchester County, for further proceedings consistent herewith.
It is undisputed that the defendant William Catucci cut down trees on the plaintiffs’ land, and thus is liable under RPAPL 861 (1). However, upon our review of the record, we find that there remains a question of fact as to whether Catucci’s cutting down of the trees was "casual and involuntary” (RPAPL 861 [2] [a]). Thompson, J. P., Sullivan, Miller, Ritter and Santucci, JJ., concur.