| Miller v Moore |
| 2009 NY Slip Op 09133 [68 AD3d 1325] |
| December 10, 2009 |
| Appellate Division, Third Department |
| Carl W. Miller et al., Appellants, v Michael C. Moore etal., Respondents. |
—[*1] Hiscock & Barclay, L.L.P., Rochester (Joseph A. Wilson of counsel), forrespondents.
Rose, J. Appeal from an order of the Supreme Court (Mulvey, J.), entered September 17,2008 in Tompkins County, upon a dismissal of the complaint at the close of plaintiffs' case.
After listing their lakefront property for sale with defendant Warren Real Estate, plaintiffsasked one of its agents, defendant Michael C. Moore, to find someone to clean up the propertyand improve the view of the lake. Moore arranged for the work to be done and later obtainedplaintiffs' permission to remove certain trees. Plaintiffs paid for the work, but when theydiscovered that many additional trees, bushes and shrubs had been destroyed and the debris hadnot been removed, they commenced this action against defendants. During trial, defendantsmoved for dismissal pursuant to CPLR 4401, and Supreme Court ultimately dismissed all ofplaintiffs' causes of action. Plaintiffs now appeal.[FN*][*2]
We find merit in plaintiffs' argument that Supreme Courterred in dismissing their first cause of action for breach of contract. To warrant dismissalpursuant to CPLR 4401, the nonmovant must be afforded every favorable inference from theproof presented and there must be "no rational process by which the fact trier could base afinding in favor of the nonmoving party" (Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]).Here, Supreme Court dismissed plaintiffs' breach of contract cause of action on the grounds thatthey had established neither the scope of the services which they asked defendants to performnor the time for completion of the work, and, thus, the parties' agreement was too indefinite to beenforceable. Plaintiffs presented testimony, however, that they had authorized the cutting of onlytwo or three trees. Although defendants disputed this evidence, it nonetheless provides a rationalbasis to conclude that the agreement was sufficiently definite to be enforceable (see CobbleHill Nursing Home v Henry & Warren Corp., 74 NY2d 475, 483 [1989]; Young vZwack, Inc., 98 AD2d 913, 914-915 [1983]). As for the missing time of completion, theabsence of a deadline merely meant that the work had to be completed within a reasonableperiod of time (see e.g. Savasta v 470 Newport Assoc., 82 NY2d 763, 765 [1993];Feinman v Kaderali, 155 AD2d 848, 849 [1989]). It was for the jury to determine, afteran appropriate instruction by the court (see NY PJI 4:1, Comment, at 629 [2d ed 2009]),what was a reasonable time and whether the work was completed within that time (seeFeinman v Kaderali, 155 AD2d at 849).
We also are persuaded by plaintiffs' argument regarding the third cause of action for timbertrespass pursuant to RPAPL former 861. While Supreme Court found that the evidenceestablished only that the removal of trees was the result of defendants' mistake and the good faithacts of those who removed them, the record also supports the contrary conclusion. In histestimony, plaintiff Carl W. Miller stated that the claim that he had agreed to the cutting of morethan two or three trees was the "most insane assertion [he'd] heard." In addition, while plaintiffMildred Miller testified that the cutting of more than two or three trees was a "crazy mistake,"she went on to explain that, rather than occurring unintentionally, Moore "had to have knownabout this" and "[n]o one in their right mind would have done that." From this evidence, the jurycould rationally infer that the removal of trees that took place was not authorized and defendants'actions in having them removed were not the result of a good faith mistake. In any event, even ifthe evidence established mere good faith negligence in removal of the trees, that would notdefeat plaintiffs' claim, but only limit their damages to the single value of the trees (seeRPAPL former 861 [2]; Myers v NYNEX Corp., 257 AD2d 898, 899 [1999];Cunningham v Brischke, 167 AD2d 604, 605 [1990]). Thus, we reverse Supreme Court'sorder as to the first and third causes of action, deny defendants' motion as to them, and remit thematter for a new trial on those claims.
Finally, because this action will be tried again, we also consider plaintiffs' claim thatSupreme Court erred in allowing defense counsel to use a letter from James Warren, thepresident of Warren Real Estate, during the cross-examination of Carl Miller. The letter relatedWarren's view that clearing vegetation from plaintiffs' property had not diminished, but ratherincreased, its value. Defense counsel read a portion of the letter in the jury's presence in anattempt to impeach Carl Miller's testimony that [*3]Warren hadacknowledged the property damage and would make reparations. Inasmuch as the letter was nota prior statement of the witness, its use for impeachment was not authorized by CPLR 4514. Norcould it otherwise be presented to the jury because it was hearsay (see Prince,Richardson on Evidence § 6-411, at 407 [Farrell 11th ed]; Larkin v Nassau Elec. R.R.Co., 205 NY 267, 270 [1912]), and no foundation was laid for its later admission intoevidence as a business record (see CPLR 4518 [a]; Colonno v Executive IAssoc., 228 AD2d 859, 861 [1996]). Thus, plaintiffs' objections to its use should have beensustained.
We have considered plaintiffs' remaining contentions and find them to be without merit.
Mercure, J.P., Lahtinen, Malone Jr. and Garry, JJ., concur. Ordered that the order ismodified, on the law, without costs, by reversing so much thereof as granted defendants' motionpursuant to CPLR 4401 for dismissal of the first and third causes of action; said motion denied tothat extent and matter remitted to the Supreme Court for a new trial of those causes of action;and, as so modified, affirmed.
Footnote *: Although plaintiffs' appealedfrom Supreme Court's final order, rather than the subsequently entered final judgment, we deemtheir appeal as also being taken from the judgment because it does not materially differ from thefinal order (see CPLR 5520 [c]; Bright v McGowan, 63 AD3d 1239, 1240 n 1 [2009], lvgranted 13 NY3d 708 [2009]). In their appellate brief, however, plaintiffs do not addressdismissal of their second cause of action or contest dismissal of their fourth cause of action. We,therefore, deem the appeal to be abandoned as to those claims (see Ostuni v Town of Inlet, 64 AD3d854, 855 n [2009]).