| Spellburg v South Bay Realty, LLC |
| 2008 NY Slip Op 02067 [49 AD3d 1001] |
| March 13, 2008 |
| Appellate Division, Third Department |
| Scott A. Spellburg, Respondent, v South Bay Realty, LLC,et al., Appellants, and Stranahan Industries, Inc., Respondent, et al.,Defendant. |
—[*1] Muller, Muller & Mannix, Glens Falls (Robert J. Muller of counsel), for Scott A. Spellburg,respondent. Hacker & Murphy, L.L.P., Latham (John F. Harwick of counsel), for Stranahan Industries,Inc., respondent.
Kavanagh, J. Appeals from an order and amended order of the Supreme Court (Krogmann,J.), entered January 17, 2007 and October 31, 2007 in Warren County, which, among otherthings, denied a motion by defendants South Bay Realty, LLC and Ralph Macchio for summaryjudgment dismissing the complaint against them.
Plaintiff owns property on French Mountain in the Town of Queensbury, Warren County.Defendant Stranahan Industries, Inc. owned property[FN*]abutting plaintiff's property and [*2]defendant Ralph Macchioowned property at the top of French Mountain. Defendant South Bay Realty, LLC is owned byMacchio. In 2004, plaintiff gave defendant David Stranahan, the acting president of StranahanIndustries, permission to cross over plaintiff's property. Sometime thereafter, Stranahan contactedMacchio and indicated that he had been contacted by John Barber of Evergreen Timber whowished to buy timber from Stranahan Industries and Macchio. Stranahan and Macchio agreed tosell timber to Evergreen Timber, and Evergreen Timber agreed to put in a jeep trail/road throughStranahan Industries' and Macchio's properties. However, when the road was built, it also crossedover plaintiff's property. After discovering the road on his property, plaintiff commenced thisaction against Stranahan, Stranahan Industries, Macchio and South Bay alleging, among otherthings, that they trespassed over his property and caused a nuisance.
Macchio and South Bay (hereinafter collectively referred to as defendants) moved forsummary judgment dismissing plaintiff's claims. Plaintiff cross-moved for leave to serve anamended and supplemental summons and complaint to add Barber and Evergreen Timber asadditional parties and to add claims. Supreme Court denied defendants' motion without prejudiceto renew and granted plaintiff's cross motion. Defendants now appeal and we affirm.
Defendants claim that summary judgment should have been granted in their favor becausethey never trespassed on plaintiff's property and never directed or otherwise participated in theplacement of the road. A person who enters the land of another without permission is atrespasser, even if he or she does so "innocently or by mistake" (104 NY Jur 2d, Trespass §10, at 472; see Golonka v Plaza at Latham, 270 AD2d 667, 669 [2000]; Collins vDecker, 120 App Div 645, 647 [1907]). Even though defendants did not enter plaintiff's land,defendants can be held liable for trespass if they "caused or directed another person to trespass"(Golonka v Plaza at Latham, 270 AD2d at 669; see Morrison v Wescor Forest Prods. Co., 28 AD3d 1225, 1226[2006]; Axtell v Kurey, 222 AD2d 804, 805 [1995], lv denied 88 NY2d 802[1996]; 104 NY Jur 2d, Trespass § 29, at 492-493). Furthermore, defendants can be heldliable for a nuisance if they interfered with an owner's "right to use and enjoy land, substantial innature, intentional or negligent in origin, unreasonable in character, and caused by thedefendant[s'] conduct" (Kaplan vIncorporated Vil. of Lynbrook, 12 AD3d 410, 412 [2004]).
According to Stranahan, both Macchio and Stranahan contracted with Evergreen Timber tobuild the road. Macchio testified at his uncompleted deposition that there was an agreement withEvergreen Timber that they would pay for the lumber and put a jeep trail directly to a pond onMacchio's property. Macchio received an invoice for the construction of the road and at hisdeposition testified that it was his understanding that Evergreen Timber was paid in lumber forits work putting in the road. Defendants' summary judgment motion was made before Macchio'sdeposition was completed and before the deposition of Barber could be held. As a result, thereare questions of fact as to whether the trespass over plaintiff's property was in fact "necessary tocomplete the contract" between Evergreen Timber, Macchio and Stranahan (Axtell vKurey, 222 AD2d at 805; see Gracey v Van Camp, 299 AD2d 837, 838 [2002]; compare Brown v Arcady Realty Corp.,1 AD3d 753, 756 [2003], lv denied 3 NY3d 606 [2004]), and the extent, if any, ofthe direction given by defendants to Evergreen Timber regarding the construction of the road.The motion for summary judgment was premature as additional discovery, including theexamination before trial of Barber and completion of Macchio's deposition, was necessary andwould "yield material and relevant evidence" (Zinter Handling, Inc. v Britton, 46 AD3d 998, 1001 [2007];see CPLR 3212 [f]; Catena vAmsterdam Mem. Hosp., 6 AD3d 1037, 1038 [2004]). Nor do we agree with defendantsthat there was an inexcusable delay seeking these [*3]depositionsor that plaintiff and Stranahan did not diligently pursue discovery (compare Steinborn v Himmel, 9 AD3d531, 535 [2004]; Sloane v Repsher, 263 AD2d 906, 907 [1999]).
Defendants also claim that there could be no trespass because plaintiff gave Stranahanpermission to cross over plaintiff's land. Plaintiff acknowledged that he gave Stranahan andBarber permission to cross over his property and, while Barber indicated that they also wanted toconstruct a trail/road through it, Barber promised to get back to plaintiff with a proposal inwriting but never did so. In sum, plaintiff contends that he never provided permission fordefendants to do anything to his property other than to cross over it. While defendants assertotherwise, these are factual questions which require denial of defendants' motion for summaryjudgment.
Given that discovery is not yet complete and unresolved issues of fact clearly exist, SupremeCourt properly denied defendants' summary judgment motion.
Defendants' remaining claims have been reviewed and found to be lacking in merit.
Mercure, J.P., Spain, Carpinello and Rose, JJ., concur. Ordered that the order and amendedorder are affirmed, with one bill of costs.
Footnote *: This property was laterpurchased by Bear Pond Trail, LLC, another company with which defendant Ralph Macchio isrelated.