| Krieg v Peters |
| 2007 NY Slip Op 10012 [46 AD3d 1190] |
| December 20, 2007 |
| Appellate Division, Third Department |
| Richard Krieg et al., Respondents, v Harold E. Peters, III, et al.,Appellants. |
—[*1] Andrew H. Van Buren, Hobart, for respondents.
Carpinello, J. Appeal from a judgment of the Supreme Court (Lebous, J.), entered October30, 2006 in Delaware County, upon a verdict rendered in favor of plaintiffs.
In May 2004, the parties became adjoining property owners when defendants purchased thevacant lot next to plaintiffs' property. Defendants purportedly intended to construct a house ontheir property. Shortly after this purchase, defendant Harold E. Peters, III (hereinafter thehusband) began clearing land without consulting the map referenced in their deed or having asurvey conducted. It is undisputed that he removed 29 trees from plaintiffs' property. Following ajury trial, plaintiffs were awarded damages, including treble damages (see RPAPL 861)for the removal of this timber. On appeal, defendants contest only the treble damages award.
Although it is not entirely clear whether defendants are arguing that the verdict awardingtreble damages was legally insufficient and/or against the weight of the evidence, we willconstrue their brief as making both arguments. In so doing, and first applying the test of whether"there is simply no valid line of reasoning and permissible inferences which could possibly leadrational [people] to the conclusion reached by the jury on the basis of the evidence presented attrial" (Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]), we reject any notion that theverdict was based on legally insufficient evidence. Likewise, as to the separate inquiryconcerning whether the jury's verdict was against the weight of the evidence, we are unable toconclude that the evidence so preponderated in favor of defendants that the jury could not havereached the verdict in favor of plaintiffs on any fair interpretation of it (see Lolik v Big VSupermarkets, 86 NY2d 744, 746 [1995]).[*2]
Indeed, in order to avoid treble damages, defendants hadthe burden of proving by clear and convincing evidence that, when they removed the trees fromplaintiffs' property, they "had cause to believe the land was [their] own" (RPAPL 861 [2]).Suffice it to say, defendants' proof in this regard was woefully inadequate.[FN*] Defendant Melinda Peters (hereinafter the wife) was the only defense witness to testify on thiscritical issue and her testimony was more damning than helpful in sustaining their burden.
According to the wife, before she and her husband purchased the subject property, shewalked it on one occasion with their realtor at which time she specifically inquired about theboundary lines. The realtor, however, was unable to answer her question with any certainty.Specifically, the wife admitted that the realtor did not know where the precise boundary lineswere that day and therefore she herself did not know. The wife further testified that she informedher husband of the realtor's uncertainty when they thereafter walked the property. She alsocandidly admitted that no steps were taken to obtain a survey or consult the map referenced intheir deed before clearing the land. Significantly, in the face of proof that he logged the property,the husband never testified. Viewing this evidence, and reiterating that it was defendants' burdento prove that they had cause to believe that they owned the land, the verdict awarding trebledamages was reached on a fair interpretation of the evidence and was not against the weight ofthe evidence (see Cohen v Hallmark Cards, supra).
To the extent that defendants argue that the Legislature did not intend for RPAPL 861 toapply to individuals, such as themselves, who make "honest" mistakes about boundary lines andthat the treble damage award was a drastic remedy with "no place in this matter," it does notappear that these precise arguments were raised before Supreme Court. There is no indication, forexample, that defendants moved to dismiss the RPAPL 861 cause of action for failure to state acause of action or objected to the jury charge outlining the statutory scheme and the parties'respective burdens of proof thereunder. In any event, on its face, the statutory scheme clearlyapplies to the facts and circumstances of this case and, in the absence of sufficient proof ondefendants' part to avoid treble damages, we do not find such award to be inconsistent with itspurpose or intent.
Mercure, J.P., Spain, Mugglin and Kane, JJ., concur. Ordered that the judgment is affirmed,with costs.
Footnote *: While defendants argue that "itcould hardly be more evident that the tree cutting was casual and involuntary," we note that theyare referencing a former version of the statute, namely, RPAPL former 861 (2) (a), which hassince been repealed (see L 2003, ch 602, § 4).