| Backus v Lyme Adirondack Timberlands II, LLC |
| 2012 NY Slip Op 05044 [96 AD3d 1248] |
| June 21, 2012 |
| Appellate Division, Third Department |
| James P. Backus, Respondent, v Lyme Adirondack Timberlands II,LLC, et al., Appellants, et al., Defendants. |
—[*1] Napierski, VanDenburgh, Napierski & O'Connor, LLP, Albany (Christina D. Porter ofcounsel), for Benjamin Pokon, appellant. Wilkins & Griffin, PLLC, Lake Placid (John T. Wilkins of counsel), forrespondent.
McCarthy, J. Appeals from an order of the Supreme Court (Meyer, J.), entered February 23,2011 in Essex County, which, in an action pursuant to RPAPL article 8, among other things,denied certain cross motions by defendants Lyme Adirondack Timberlands II, LLC andBenjamin Pokon for summary judgment dismissing the complaint against them.
In 2004, plaintiff entered into an oral contract with Clarence Bevins and DeDe Bevins topurchase a parcel of land in Essex County. Plaintiff immediately took possession of the property,began paying taxes on it and apparently began making installment payments to the Bevinses. InMay 2007, Lyme Adirondack Timber Sales, Inc., which owns an adjacent parcel of property,entered into a contract with defendant Trent Abare to harvest timber. On July 2, 2007, plaintiffmade the last installment payment to the Bevinses. A few days later, plaintiff noticed that treeshad been cut down on the subject property. In October 2007, at plaintiff's request, the Bevinsesapparently deeded the property to Herbert Knight. In December 2009, again at plaintiff's request,the Bevinses deeded the property to plaintiff.[*2]
In February 2010, plaintiff commenced this actionpursuant to RPAPL 861 against defendants Lyme Adirondack Timberlands II, LLC (hereinafterLyme), Abare, licensed forester Benjamin Pokon and two unknown companies for, among otherthings, the fair market value of 483 trees that defendants allegedly cut down and 63 trees thatthey destroyed. Following joinder of issue, plaintiff moved for leave to amend his complaint toadd Lyme Adirondack Timber Sales, Inc. and Upland Resource Group, Inc., doing business asUpland Forestry, as defendants and join the Bevinses as necessary parties. Lyme and Pokonseparately cross-moved for summary judgment dismissing the complaint against them. SupremeCourt, among other things, granted plaintiff's motion to amend and denied the cross motionswithout prejudice. Lyme and Pokon appeal.
Initially, the parties consented to substitute Upland Forestry, Pokon's employer, in place ofPokon and discontinued the action against him. As Pokon is no longer a party and is notaggrieved by Supreme Court's order, his appeal must be dismissed (see CPLR 5511;Roth v Michelson, 55 NY2d 278, 281 n 1 [1982]; Matter of Avery v Aery, 55 AD3d 1095, 1095-1096 [2008]).
Supreme Court properly allowed plaintiff to amend his complaint to add the Bevinses asnecessary parties. Leave to amend a pleading should be freely granted as long as the amendmentdoes not plainly lack merit and no prejudice will befall the opposing party (see Davis v Wyeth Pharms., Inc., 86AD3d 907, 908 [2011]). The trial court has great discretion in deciding such a motion, andthe determination should not be disturbed absent an abuse of discretion (see id.). Inresponse to defendants' contentions that plaintiff lacked standing to pursue this action, he soughtto amend his complaint to add the Bevinses as necessary parties, asserting that if they—ashis predecessors in interest and holders of legal title at the time the trees werecut—possessed the right to pursue this action then he could recover from them, andcomplete relief may not be accorded without them (see CPLR 1001 [a]). The statute oflimitations for an action to recover for injury to property, such as an RPAPL 861 action, is threeyears (see CPLR 214 [4]; Chargo v Simons, 71 AD3d 1481, 1482 [2010], lv denied14 NY3d 713 [2010]; Mandel v Estate of Frank L. Tiffany, 263 AD2d 827, 829 [1999]).The amended complaint was filed more than three years after defendants harvested the trees. Theaction is timely, however, under the relation back doctrine (see CPLR 203 [f]). Plaintiffconceded that the claims to be asserted by the Bevinses are the same claims that he allegedagainst defendants, making them united in interest as against defendants (see De Sanna v Rockefeller Ctr., Inc., 9AD3d 596, 598 [2004]; State of New York v General Elec. Co., 199 AD2d 595,597-598 [1993]). Defendants are not prejudiced because they were aware of the causes of actionand can only be held liable once—to either plaintiff or the Bevinses. In light of theBevinses' reluctance to join the action as plaintiffs, the court properly joined them as defendants(see CPLR 1001 [a]).
Supreme Court properly refused to grant summary judgment as questions of factexist.[FN1][*3]Only the actual owner of real property may maintain an actionpursuant to RPAPL 861 (see Cornick v Forever Wild Dev. Corp., 240 AD2d 980, 980[1997]). Lyme submitted plaintiff's response to a notice to admit wherein plaintiff admitted thatin July 2007 he was "not the fee owner of record of the real property" and that the deed from theBevinses that stated it was given on July 4, 2007 was actually signed in December 2009. Plaintiffsubmitted his affidavit averring that he entered into an oral agreement in 2004, took possessionimmediately, paid the last installment on July 2, 2007 and noticed the tree cutting after that date.He also submitted school tax bills indicating that he paid the taxes from 2005 to 2009. A jointaffidavit from the Bevinses contained most of those same assertions, but also stated that atplaintiff's request, they executed a deed to Knight in October 2007 and a deed to plaintiff inDecember 2009, the latter backdated with the intent to make the transfer effective to plaintiff asof July 4, 2007 and to provide him with the right to prosecute this action. The record does notcontain the deed to Knight. The record information raises factual questions as to whether theproperty was validly transferred to Knight, which would have left the Bevinses with no interest totransfer to plaintiff.[FN2]It is also unclear whether plaintiff was truly the equitable owner of the property, with theBevinses holding legal title to the property on his behalf, when the injury to the propertyoccurred. As there are factual questions regarding the nature of plaintiff's ownership interest ofthe property at the time, the court properly denied the motions for summary judgment withoutprejudice.
Lyme cannot assert a statute of frauds defense to defeat plaintiff's assertion that he heldequitable title pursuant to the oral agreement (see General Obligations Law §5-703 [3]), as the defense is personal and cannot be raised by a stranger to the agreement (see Ferry v Ferry, 13 AD3d 765,766 [2004]; Matter of Lee v Maltais, 250 AD2d 951, 953 [1998], lv denied 92NY2d 809 [1998]; Vincent v Seaman, 152 AD2d 841, 843 [1989]). The parties'remaining contentions have been reviewed and do not merit further discussion.
Peters, P.J., Lahtinen, Spain and Kavanagh, JJ., concur. Ordered that the appeal by defendantBenjamin Pokon is dismissed. Ordered that the order is affirmed, with costs.
Footnote 1: The motion could also havebeen denied because summary judgment on the amended complaint would have been premature,given that leave to amend was granted simultaneously, no defendants had answered the amendedcomplaint and new parties had just been added (see CPLR 3212 [a]; Greene v Hayes, 30 AD3d 808,810 [2006]; Gold Medal Packing vRubin, 6 AD3d 1084, 1085 [2004]).
Footnote 2: At oral argument, the partiesindicated that Knight has subsequently been made a party to this action.