| Jones v Castlerick, LLC |
| 2015 NY Slip Op 03904 [128 AD3d 1153] |
| May 7, 2015 |
| Appellate Division, Third Department |
[*1]
| Nina Anson Szarkowski Jones et al.,Respondents-Appellants, v Castlerick, LLC, Appellant-Respondent, andJonathan Rick et al., Respondents. |
Douglas J. Rose, Pittsfield, Massachusetts, for appellant-respondent.
Tuczinski, Cavalier & Gilchrist, PC, Albany (Jonathon B. Tingley of counsel),for respondents-appellants.
Lahtinen, J. (1) Cross appeals (a) from an order of the Supreme Court (Zwack, J.),entered December 20, 2013 in Columbia County, which partially denied defendants'motion for summary judgment dismissing the complaint, and (b) from an order of saidcourt, entered May 13, 2014 in Columbia County, which assessed certain damagesagainst defendant Castlerick, LLC, and (2) appeal from the judgment enteredthereon.
Defendants Jonathan Rick and George Castleman are principals of defendantCastlerick, LLC, which owned unimproved land adjoining plaintiffs' real property in theTown of New Lebanon, Columbia County. Robert Kavanaugh approached defendantsabout allowing him to cut timber on Castlerick's property, and defendants verbally agreedto allow such work for a portion of the profits. During the course of the work,Kavanaugh entered and cut timber on plaintiffs' property. Plaintiffs commenced thisaction against defendants alleging various theories of liability. Kavanaugh—whoostensibly could not be located—was not made a party to the [*2]action, and defendants moved for summary judgmentdismissing the complaint upon the ground that they were not liable for the acts ofKavanaugh, who defendants contended acted as an independent contractor.
Supreme Court, among other things, dismissed all causes of action as to Rick andCastleman, individually, and determined that damages would be limited to $250 per tree.Although plaintiffs had not made a cross motion, the court essentially granted partialsummary judgment to plaintiffs against Castlerick as the court found that plaintiffs wereentitled to damages from Castlerick. The court directed the parties to submit affidavitsregarding the number of trees destroyed, and stated that, after its review of the affidavits,it would decide whether a hearing on damages was necessary. Plaintiffs and Castlerickcross- appealed from the order. The parties, among other things, submitted affidavitsregarding damages as directed. Supreme Court rejected as incredible the calculation ofplaintiffs' expert that 380 trees had been cut, and it accepted the estimate of defendants'expert of 87 cut trees, resulting in total damages of $21,750. Plaintiffs and Castlerickcross-appealed from this second order, and plaintiffs appealed from the ensuingjudgment entered thereon.
It was error to grant summary judgment relief to defendants for issues not raised intheir motion papers including, among other things, dismissing the complaint as to Rickand Castleman upon the ground that the property was owned by Castlerick. These issueswere not properly before Supreme Court. Defendants' motion for summary judgment wasbased upon the assertion that Kavanaugh was an independent contractor and that theytherefore were not liable for his acts. The parties were not notified that additional issueswould be addressed in the motion and, to the extent that defendants' reply papersreferenced the ownership issue, "reply papers are intended to address contentions raisedin opposition to the motion and not to introduce new arguments in support of the motion"(N.A.S. Partnership v Kligerman, 271 AD2d 922, 923 [2000]). Plaintiffs were"not afforded an opportunity to address the new argument[s]" (Matter of Allstate Ins. Co. vDawkins, 52 AD3d 826, 827 [2008]) and, in addition, the record was notsufficiently developed to resolve such issues as a matter of law.
We turn next to the merits of defendants' argument that they are not liable toplaintiffs for Kavanaugh's alleged independent acts.[FN1] Any person who engages in—orcauses another to engage in—the cutting, removing, injuring or destroying of thetrees of another without the owner's consent is liable for such conduct (seeRPAPL 861 [1]; Vanderwerkenv Bellinger, 72 AD3d 1473, 1474 [2010]). The fact that a logger trespasseswhile working as an independent contractor for an adjoining landowner "does notprovide [the adjoining landowner] with an impenetrable shield for it has long been thelaw of this [s]tate that property owners are not protected from liability for a trespasscommitted by an independent contractor if they directed the trespass or such trespass wasnecessary to complete the contract" (Axtell v Kurey, 222 AD2d 804, 805 [1995],lv denied 88 NY2d 802 [1996]; see Spellburg v South Bay Realty, LLC, 49 AD3d 1001,1002 [2008]; cf. Brown vArcady Realty Corp., 1 AD3d 753, 755 [2003], lv denied 3 NY3d 606[2004]).[FN2] Therewas proof that defendants had affirmatively provided Kavanaugh [*3]incorrect information regarding the boundaries. ColtonBrown, the spouse of plaintiff Natasha Szarkowski Brown, related in an affidavitconversations that he allegedly had with Rick and Castleman shortly after the trees werecut in which they acknowledged that they had walked the property lines with Kavanaughand pointed out to him a stone wall as a boundary between the properties. However, therewere two stone walls and the one referenced as a boundary was not a boundary, but waslocated entirely on plaintiffs' property. According to Brown, Rick and Castleman alsostated that they had visited the property while the logging was in progress. Althoughdefendants denied many of the key allegations and presented conflicting evidence,nonetheless viewed most favorably to plaintiffs as the nonmovants (see e.g. Vega v Restani Constr.Corp., 18 NY3d 499, 503 [2012]), there is ample proof in the record to raise atriable issue regarding defendants' liability.
Supreme Court erred in granting partial summary judgment to plaintiffs againstCastlerick and then determining damages as a matter of law. A court has the authority tosearch the record and grant summary judgment to a nonmoving party (see CPLR3212 [b]; Schillaci v Sarris,122 AD3d 1085, 1088 [2014]). However, when the conflicting proof is consideredon this issue in a light most favorable to Castlerick as the opponent of summarydisposition, there are factual issues regarding liability arising from defendants' proof thatthey showed Kavanaugh the correct boundaries, they were neither present norparticipated in any lumbering activities, and they never received any compensation fromKavanaugh (see Brown v Arcady Realty Corp., 1 AD3d at 755-756). Moreover,even if liability had been properly established, damages were not susceptible on thisrecord to summary determination. Potential damages include treble[FN3] the stumpagevalue—as defined by RPAPL 861 (3)—or $250 per tree, or both(see RPAPL 861 [1]; Fernandes v Morgan, 95 AD3d 1626, 1627 [2012]). Here,among other things, there was proof reflecting significant discrepancies in the number oftrees cut on plaintiffs' property, thus creating an issue for the factfinder. The remainingissues are academic.
Peters, P.J., Rose and Devine, JJ., concur. Ordered that the order entered December20, 2013 is modified, on the law, without costs, by reversing so much thereof as (1)partially granted defendants' motion for summary judgment and (2) sua sponte grantedplaintiffs partial summary judgment against defendant Castlerick, LLC; defendants'motion denied in its entirety and sua sponte determination vacated; and, as so modified,affirmed. Ordered that the order entered May 13, 2014 and the judgment are reversed, onthe law, without costs, and judgment vacated.
Footnote 1:This argument, ifmeritorious, would provide a properly raised alternative ground to uphold the dismissalas to Rick and Castleman, in addition to dismissal as to Castlerick.
Footnote 2:Although Axtell vKurey (supra) was decided under RPAPL former 861, the current statute,enacted in 2003 (see L 2003, chs 602, 623), specifically includes potentialliability not only for any person who cuts trees, but also for one who "causes [trees] to becut" (RPAPL 861 [1]). This keeps in place potential liability for a person who hiresanother to do the work (see generally Mem of Legislative Bureau of the Office ofthe Attorney General, Bill Jacket, L 2003, ch 602 at 16 ["The bill also subjects to liabilitythose who hire the person committing the violation or otherwise cause the violation tooccur"]).
Footnote 3:"To escape. . . treble damages, the trespasser bears the burden of proving, by clear andconvincing evidence, that 'he or she had cause to believe the land was his or her own. . . or [that] he or she had a legal right to harvest such land' " (Fernandes v Morgan, 95 AD3d1626, 1627 [2012], quoting RPAPL 861 [2]).