| Follender v Maxim |
| 2007 NY Slip Op 07974 [44 AD3d 1227] |
| October 25, 2007 |
| Appellate Division, Third Department |
| Jonathan S. Follender, Appellant, v Berton L. Maxim, Individuallyand Doing Business as Prime Hardwood, et al., Respondents. |
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Peters, J. Appeal from an order of the Supreme Court (Coccoma, J.), entered July 5, 2006 inDelaware County, which awarded judgment to plaintiff against defendant Berton L. Maxim.
Plaintiff purchased real property in the Town of Roxbury, Delaware County, which includedan assignment of the seller's legal right to assert a cause of action for a "wrongful and/or cuttingdown/taking of timber" from the purchased property. Defendant Berton L. Maxim and his wife,doing business as Prime Hardwood, had entered into a contract with plaintiff's adjacentlandowners, Valentine Riedman and Christl Riedman, to log their property. In the processthereof, they trespassed on plaintiff's property and removed trees. Plaintiff commenced thisaction, alleging negligence and conversion, with a request for treble damages, against all suchdefendants, naming Maxim's wife as Jane Doe Maxim. Although plaintiff ultimately agreed to astipulation of discontinuance against the Riedmans,[FN*]the remaining defendants failed to answer or appear. After learning that Maxim's wife's namewas Eileen Tine, plaintiff filed an amended verified complaint against, among others, Maxim andhis wife, both individually and doing business as Prime Hardwood (hereinafter collectivelyreferred to as defendants). Again, [*2]defendants failed to answeror appear.
After plaintiff successfully moved for a default judgment against them, Supreme Courtordered an inquest. When defendants again failed to appear, plaintiff offered extensive proofwhich included, among other things, the contract between the Riedmans and Tine, on behalf ofPrime Hardwood. Plaintiff also proffered an affidavit from Valentine Riedman which explainedthat when Maxim came to log his property, he was given a survey map which depicted theRiedmans' boundary line. Valentine Riedman maintained that he was unaware that Maxim wouldremove timber outside of those boundaries. Michael Greason, a professional forester, testifiedthat 439 trees, of a commercial species, were cut or destroyed from plaintiff's property, 386 ofwhich had a total value of $54,506.68. Supreme Court, upon determining that Maxim trespassedonto plaintiff's property and unlawfully removed trees therefrom, trebled the damages inplaintiff's amended complaint (see CPLR 305 [b]), pursuant to RPAPL 861 (1), andawarded $120,000 against Maxim. This order, however, failed to mention Tine. Plaintiff appeals,contending that the failure to include Tine in the order awarding damages was a mistake.
It is well settled that this Court may correct any mistake, defect or irregularity in a judgment,provided that the correction does not affect a substantial right of a party (see CPLR 5019[a]; Poughkeepsie Sav. Bank, FSB v Maplewood Land Dev. Co., 210 AD2d 606, 608[1994]; Matter of Fiorillo v New York State Dept. of Envtl. Conservation, 162 AD2d929, 930 [1990]). Here, the record is clear that, despite being named in both the original andamended complaint, Tine failed to answer or appear. Although she had the right, despite herdefault, to offer proof at the inquest (seeEden Park Health Servs. v Estes, 2 AD3d 1186, 1187 [2003]), Tine again failed toappear. With evidence confirming that Tine was a signatory in the contract between PrimeHardwood and the Riedmans, we agree with plaintiff that Supreme Court's order must bemodified to include Tine in the award of damages (see Federal Deposit Ins. Corp. v J & DEinbinder Assoc., 224 AD2d 655, 656 [1996]; see also Woolfalk v New York City Hous. Auth., 36 AD3d 444,444 [2007]).
Cardona, P.J., Mercure, Spain and Carpinello, JJ., concur. Ordered that the order is modified,on the law, without costs, by also awarding judgment against defendant Eileen Tine, and, as somodified, affirmed.
Footnote *: Plaintiff also named MarieRiedman, Valentine Riedman's ex-wife, since she formerly owned the subject property.