| Chargo v Simons |
| 2010 NY Slip Op 02292 [71 AD3d 1481] |
| March 19, 2010 |
| Appellate Division, Fourth Department |
| Shane Chargo et al., Appellants, v Benjamin Simons,Respondent. |
—[*1]
Appeal from an order of the Supreme Court, Oneida County (Bernadette T. Romano, J.),entered July 21, 2009 in an action pursuant to RPAPL 861. The order, inter alia, granteddefendant's motion to dismiss the complaint.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiffs commenced this action pursuant to RPAPL 861 in June 2007seeking damages for defendant's trespass upon their property in March 2004. According toplaintiffs, defendant cut and removed trees therefrom without their permission. We conclude thatSupreme Court properly granted defendant's motion to dismiss the complaint as time-barredinasmuch as the statute of limitations for "action[s] to recover damages for an injury to property"is three years (CPLR 214 [4]), and it applies to actions seeking treble damages for the removal ordestruction of trees and any resulting damage to property pursuant to RPAPL 861 (seeMandel v Estate of Frank L. Tiffany, 263 AD2d 827, 829 [1999]; see also Wild v Hayes, 68 AD3d1412, 1414-1415 [2009]; Weichert v O'Neill, 245 AD2d 1121 [1997]). Contrary tothe contention of plaintiffs, we conclude that the court did not abuse its discretion in grantingthat part of their cross motion to dismiss defendant's counterclaims for defamation and abuse ofprocess without prejudice (see CPLR 5013). Present—Centra, J.P., Peradotto,Lindley, Green and Gorski, JJ.