| Western N.Y. Land Conservancy, Inc. v Cullen |
| 2009 NY Slip Op 07036 [66 AD3d 1461] |
| October 2, 2009 |
| Appellate Division, Fourth Department |
| Western New York Land Conservancy, Inc.,Respondent-Appellant, v John S. Cullen et al., Appellants-Respondents. (Appeal No.1.) |
—[*1] Rupp, Baase, Pfalzgraf, Cunningham & Coppola LLC, Buffalo (R. Anthony Rupp, III, ofcounsel), for plaintiff-respondent-appellant.
Appeal and cross appeal from an order and judgment (one paper) of the Supreme Court, ErieCounty (John A. Michalek, J.), entered July 18, 2008 in a trespass action. The order andjudgment, among other things, awarded judgment in favor of plaintiff and against defendants inthe amount of $631,296.18.
It is hereby ordered that the order and judgment so appealed from is unanimously affirmedwithout costs.
Memorandum: Western New York Land Conservancy, Inc. (Land Conservancy), thedefendant in action No. 1 and the plaintiff in action No. 2, commenced action No. 2 seekingcompensatory and punitive damages for, inter alia, the trespass of John S. Cullen andCullenwood Farms, LLC (Cullenwood Farms), the defendants in action No. 2 (hereafter,defendants), upon its property. The Land Conservancy and Cullenwood Farms, the plaintiff inaction No. 1, own adjoining properties. A trial was held, and Supreme Court directed a verdicton liability in favor of the Land Conservancy with respect to defendants' trespass on the propertyof the Land Conservancy by cutting down trees and making two cut-throughs on its property, aswell as cutting down trees and encroaching on its property by enlarging a pond. Following a jurytrial on damages, the Land Conservancy was awarded $98,181 in compensatory damages and$500,000 in punitive damages.
Defendants contend that the court erred in precluding them from "contending at trial,eliciting or introducing evidence, or suggesting to the jury" that they had permission to excavatethe Land Conservancy property or to install landscaping there, inasmuch as such evidence wouldbe relevant on the issue of the Land Conservancy's entitlement to punitive damages. Evenassuming, arguendo, that the court erred in precluding that evidence, we conclude that the erroris harmless because " 'the result would have been the same if the evidence had not beenimproperly [precluded]' " (Corsaro v Mt. Calvary Cemetery, 258 AD2d 969, 969-970[1999]; see generally Duncan v Mount St. Mary's Hosp. of Niagara Falls [appeal No. 3],272 AD2d 862 [2000], lv denied 95 [*2]NY2d 760[2000]). The proposed evidence would not have established that defendants received permissionto excavate the Land Conservancy's property and to extend a pond over it, or to cut down treesand to plant nonnative trees in their place. We reject defendants' further contention that theaward of compensatory damages was based on speculation, particularly in view of the fact thatthe Land Conservancy was prevented from more accurately calculating its compensatorydamages because of defendants' conduct in removing the trees and stumps (see Matter ofRothko, 43 NY2d 305, 323 [1977]). We further conclude that the award of compensatorydamages was not against the weight of the evidence (see Fareway Hgts. v Hillock, 300AD2d 1023, 1024-1025 [2002]).
We reject defendants' contentions that the award of punitive damages was not warranted,was excessive, and was violative of defendants' right to due process. Addressing first the issuewhether punitive damages were warranted, we note that, "[i]n order to recover punitive damagesfor trespass on real property, [a plaintiff has] the burden of proving that the trespasser acted withactual malice involving an intentional wrongdoing, or that such conduct amounted to a wanton,willful or reckless disregard of plaintiff['s] rights" (Ligo v Gerould, 244 AD2d 852, 853[1997]; see Golonka v Plaza at Latham, 270 AD2d 667, 670 [2000]). The jury properlyconcluded that Cullen's conduct was sufficiently egregious to warrant punitive damages. Theevidence established that Cullen acted intentionally and with no regard for the rights of the LandConservancy. He used the Land Conservancy's property for transporting construction materialsonto his property, in order to avoid ruining his own driveway or creating a new driveway on hiswestern property. After the Land Conservancy placed a chain blocking access to the firstcut-through that he made, he had a second cut-through made by again cutting down numeroustrees and laying down stone. With respect to the pond encroachment, there was evidence thatCullen's contractor refused to enlarge the pond because it would extend onto the property of theLand Conservancy. Cullen informed the contractor that, in the event that the Land Conservancybecame aware of the trespass, he had an attorney "who loved to fight" and that he could "dragthis out for a while." Cullen then hired another contractor to excavate the Land Conservancy'sproperty. The fact that the total acreage damaged by Cullen was small in relation to the totalamount of land held by the Land Conservancy does not diminish Cullen's wrongful conduct, nordoes that fact render the wrongful conduct less egregious. We further conclude that an award ofpunitive damages was particularly appropriate under the circumstances of this case, in order "topunish the wrongdoer and to deter repetition of such behavior in the future" (Strader v Ashley, 61 AD3d 1244,1248 [2009], lv dismissed 13 NY3d 756 [2009], citing Ross v Louise Wise Servs., Inc., 8NY3d 478, 489 [2007]).
With respect to the issues whether the punitive damages award was excessive or violative ofdefendants' due process rights, we note that "[t]he Due Process Clause of the FourteenthAmendment prohibits a State from imposing a grossly excessive punishment on a tortfeasor"(BMW of North America, Inc. v Gore, 517 US 559, 562 [1996] [internal quotation marksomitted]). The three factors to consider in evaluating whether an award is grossly excessive are"the degree of reprehensibility . . . ; the disparity between the harm or potentialharm suffered . . . and [the] punitive damages award; and the difference betweenthis remedy and the civil penalties authorized or imposed in comparable cases" (id. at575; see Guariglia v Price ChopperOperating Co., Inc., 38 AD3d 1043, 1044 [2007], lv denied 9 NY3d 801 [2007];Sawtelle v Waddell & Reed, 304 AD2d 103, 108-109 [2003]). Upon our review of thepunitive damages award, we conclude that it was not excessive, and that it was not violative ofdefendants' due process rights. Indeed, we conclude that the award "bears a reasonable relationto the harm done and the flagrancy of the conduct causing it" (Fareway Hgts., 300 AD2dat 1025 [internal quotation marks omitted]). We have considered defendants' remainingcontentions and conclude that they are without merit.
On its cross appeal, the Land Conservancy contends that the court erred in refusing to treblethe award for tree damage, pursuant to RPAPL 861 (1). A plaintiff may recover "treble thestumpage value of the tree or timber or two hundred fifty dollars per tree, or both and for any[*3]permanent and substantial damage caused to the land or theimprovements thereon as a result" of the destruction of any tree (id.). The term stumpagevalue is defined as "the current fair market value of a tree as it stands prior to the time of sale,cutting, or removal" (RPAPL 861 [3]). Here, the court properly refused to award treble damagesbecause the Land Conservancy failed to present the requisite evidence with respect to stumpagevalue, and instead presented evidence of restoration costs. Present—Martoche, J.P.,Centra, Peradotto and Green, JJ.