| West v Hogan |
| 2011 NY Slip Op 07086 [88 AD3d 1247] |
| October 7, 2011 |
| Appellate Division, Fourth Department |
| Ricky D. West et al., Respondents, v Mark Hogan et al.,Appellants/Third-Party Plaintiffs-Appellants. David VandeWater, Third-PartyDefendant-Respondent. |
—[*1] Slye & Burrows, Watertown (Robert J. Slye of counsel), for third-partydefendant-respondent. Conboy McKay Bachman & Kendall, LLP, Watertown (Peter L. Walton of counsel), forplaintiffs-respondents.
Appeal from an order and judgment (one paper) of the Supreme Court, Lewis County(Charles C. Merrell, A.J.), entered April 7, 2010. The order and judgment, inter alia, determinedthe title to certain real property upon a jury verdict.
It is hereby ordered that the order and judgment so appealed from is modified on the law byvacating the award of punitive damages and as modified the order and judgment is affirmedwithout costs, and a new trial is granted on punitive damages only unless plaintiffs, within 30days of service of a copy of the order of this Court with notice of entry, stipulate to reduce theaward of punitive damages to $15,000, in which event the order and judgment is modifiedaccordingly and as modified the order and judgment is affirmed without costs.
Memorandum: Plaintiffs commenced this action seeking, inter alia, a determination that theyacquired title to certain property by adverse possession. Plaintiffs own lot 8 on Hiawatha Lake Iin the Town of Grieg (Town), and that lot is improved by a camp that was built in approximately1971. In October 2004 defendants/third-party plaintiffs (defendants) purchased [*2]lot 7, which was a vacant lot to the east of lot 8, and theycommissioned a survey of the two lots. According to the property line that is depicted in thatsurvey, the east side of plaintiffs' camp on lot 8 encroached on lot 7 by approximately 2½feet. After purchasing lot 7, Mark Hogan (defendant) began asserting his rights to all of theproperty to the east of the property line depicted in the survey. Plaintiffs thereafter commissionedtheir own survey of the two lots and, according to that survey, the property line between lots 7and 8 was approximately 10 to 12 feet to the east of the property line depicted in defendants'survey. Plaintiffs alleged that they acquired title to the area that fell within the property lines asdepicted in the two surveys (hereafter, disputed area).
Supreme Court properly granted that part of plaintiffs' motion for a directed verdict on theissue of adverse possession inasmuch as there was " 'no rational process by which the fact triercould base a finding in favor of the nonmoving party' " (Bennice v Randall, 71 AD3d 1454, 1455 [2010], quotingSzczerbiak v Pilat, 90 NY2d 553, 556 [1997]). Plaintiffs established by clear andconvincing evidence that their possession of the disputed area was "(1) hostile and under claim ofright; (2) actual; (3) open and notorious; (4) exclusive; and (5) continuous for the required period. . . [of] at least 10 years" (Walling v Przybylo, 7 NY3d 228, 232 [2006]). In addition,plaintiffs established that the disputed area was "usually cultivated or improved" pursuant toRPAPL 522 former (1), which was in effect when plaintiffs commenced this action. "The type ofcultivation or improvement sufficient under the statute will vary with the character, condition,location and potential uses for the property" (City of Tonawanda v Ellicott Cr. HomeownersAssn., 86 AD2d 118, 122-123 [1982], appeal dismissed 58 NY2d 824 [1982]; seeRay v Beacon Hudson Mtn. Corp., 88 NY2d 154, 160 [1996]). Plaintiffs, whose parentspurchased lot 8 in 1983, and other witnesses testified that plaintiffs mowed and raked thedisputed area, placed lawn chairs on it, and used it to access the hatchway doors that wereinstalled in 1988 on the east side of the camp that led to the furnace, hot water heater and shower.Plaintiffs built a memorial for their father on the disputed area in 1992, consisting of a plaquefixed to a rock on a raised flower bed with a hand water pump next to it. Plaintiffs also placed aclothesline and their boats on the disputed area, and the septic system for lot 8 was in the middleof that area. Based on those facts, we conclude that plaintiffs usually cultivated or improved thedisputed area (see Hammond vBaker, 81 AD3d 1288, 1289-1290 [2011]; West Middlebury Baptist Church v Koester, 50 AD3d 1494, 1495[2008]).
We reject defendants' contention that plaintiffs failed to establish the required elements ofhostility, claim of right or exclusivity. The evidence presented at trial established that plaintiffsand their predecessors used the disputed area exclusively from the time the camp was constructedin 1971 until defendants commissioned the survey in 2004. If all the other elements of adversepossession are established, it is presumed that the use was hostile and under a claim of right (see DeRosa v DeRosa, 58 AD3d794, 796 [2009], lv denied 12 NY3d 710 [2009]; Allen v Mastrianni, 2 AD3d 1023, 1024 [2003]; Parsons vHollingsworth, 259 AD2d 1054 [1999]). "By definition, a claim of right is adverse to the titleowner[s] and also in opposition to the rights of the true owner[s]" (Walling, 7 NY3d at232). Plaintiffs established that they and their predecessors used the disputed area openly andnotoriously and that they and their predecessors had been in actual, exclusive, and continuouspossession of the disputed area since 1971. Thus, a presumption of hostility under a claim ofright arose, and defendants failed to rebut that presumption (see Hammond, 81 AD3d at1289). The evidence submitted by defendants regarding events that occurred in 1998 is of nomoment inasmuch as plaintiffs had already acquired the property by adverse possession at thattime.
We reject defendants' further contention that the court erred in awarding plaintiffs punitivedamages. "In order to recover punitive damages for trespass on real property, plaintiffs have theburden of proving that the trespasser acted with actual malice involving an intentionalwrongdoing, or that such conduct amounted to a wanton, willful or reckless disregard of [*3]plaintiffs' rights" (Ligo v Gerould, 244 AD2d 852, 853[1997]; see Litwin v Town of Huntington, 248 AD2d 361 [1998]). Although defendants'survey demonstrated that the disputed area was located within lot 7, it is undisputed thatdefendant thereafter granted plaintiffs permission to "continue to use th[at] portion of [their]camp on [his] property." Moreover, defendant admitted that he had held a lease option on lot 7since 1996, and thus it would be reasonable to assume that he was aware of the fact that plaintiffshad exercised rights of ownership over the disputed area since that time. Defendant was alsoaware of the fact that plaintiffs contested his ownership over the disputed property inasmuch asthe town code enforcement officer noted the "ongoing dispute" between the parties in a letter todefendant in August 2005. Despite granting plaintiffs permission to use their camp and knowingthat they contested his ownership of the disputed area, defendant erected a fence that abuttedplaintiffs' camp and prevented plaintiffs from accessing their cellar through the hatchway doorsthat were located in the disputed area. Defendant also padlocked those hatchway doors, movedand demolished portions of the memorial to plaintiffs' father and flipped over boats owned byplaintiffs that were stored in the disputed area.
Once the court determined that the property was owned by plaintiffs by reason of adversepossession, defendant was responsible for any damages that he caused to plaintiffs' property byreason of his trespass, and the jury properly awarded plaintiffs compensatory damages. It isundisputed that punitive damages may also be awarded for actions based on real propertytrespass (see e.g. Western N.Y. LandConservancy, Inc. v Cullen, 66 AD3d 1461, 1463 [2009], appeal dismissed 13NY3d 904 [2009], lv denied 14 NY3d 705 [2010], rearg denied 15 NY3d 746[2010]; Ligo, 244 AD2d at 853), but we agree with our dissenting colleagues that theredoes not appear to be any case awarding punitive damages where, as here, the trespass occurredas a result of adverse possession. We note, however, that there is also no case prohibiting theaward of punitive damages in such a situation, and we conclude that this is an "exceptional" casewhere punitive damages are appropriate (Ross v Louise Wise Servs., Inc., 8 NY3d 478, 489 [2007]; cf.Litwin, 248 AD2d 361). We recognize that, at the time defendant committed his maliciousacts, he possessed a survey indicating that he owned the disputed area. Nevertheless, defendantwas aware that there was a dispute over the property line, and he granted plaintiffs permission tocontinue to use their camp. Despite those facts, defendant proceeded to destroy plaintiffs'property, including desecrating a memorial, and the evidence strongly suggests that he pluggedplaintiffs' vent pipe, rendering their toilet unusable, and entered their cellar to cut and remove thenew vent pipe that plaintiffs subsequently installed. Defendant's conduct was intentional, "'evince[d] a high degree of moral turpitude and demonstrate[d] such wanton dishonesty as toimply a criminal indifference to [his] civil obligations' " (Ross, 8 NY3d at 489). At thevery least, it was conduct that "amounted to a wanton, willful or reckless disregard of plaintiffs'rights" (Ligo, 244 AD2d at 853).
We conclude, however, that the award of $200,000 in punitive damages was "so grosslyexcessive 'as to show by its very exorbitancy that it was actuated by passion' " (Nardelli vStamberg, 44 NY2d 500, 504 [1978]). Based on awards in other trespass cases, we concludethat $15,000 is the amount that " 'bears a reasonable relation to the harm done and the flagrancyof the conduct causing it' " (Western N.Y. Land Conservancy, Inc., 66 AD3d at 1464; see e.g. Vacca v Valerino, 16 AD3d1159, 1160 [2005]; Ligo, 244 AD2d at 853). We therefore modify the order andjudgment by vacating the award of punitive damages, and we grant a new trial on punitivedamages only unless plaintiffs, within 30 days of service of a copy of the order of this Court withnotice of entry, stipulate to reduce that award to $15,000, in which event the order and judgmentis modified accordingly.
We have considered defendants' remaining contentions and conclude that they are withoutmerit.[*4]
All concur except Centra and Fahey, JJ., who dissent inpart and vote to modify in accordance with the following memorandum.
Centra and Fahey, JJ., (dissenting in part). We respectfully dissent in part and would modifythe order and judgment by vacating the award of punitive damages. Plaintiffs anddefendants/third-party plaintiffs (defendants) own adjoining properties on Hiawatha Lake I in theTown of Grieg. Plaintiffs' lot is improved by a camp built in approximately 1971, and defendants'lot is vacant. When defendants purchased their lot in October 2004, they commissioned a surveythat established that the east side of the camp owned by plaintiffs encroached on defendants' lotby approximately 2½ feet. According to plaintiffs, they acquired title to the disputed area,which extends between 10 and 12 feet to the east of their camp, by adverse possession. AlthoughMark Hogan (defendant) began asserting his right to the disputed area shortly after defendantspurchased their lot, plaintiffs waited until October 2006 to commence this action seeking, interalia, a determination that they acquired title to the disputed area by adverse possession.
We disagree with the majority's conclusion that punitive damages are appropriate in thiscase. "In order to recover punitive damages for trespass on real property, plaintiffs have theburden of proving that the trespasser acted with actual malice involving an intentionalwrongdoing, or that such conduct amounted to a wanton, willful or reckless disregard ofplaintiffs' rights" (Ligo v Gerould, 244 AD2d 852, 853 [1997]; see Litwin v Town ofHuntington, 248 AD2d 361 [1998]). In our view, this is not an "exceptional" case wherepunitive damages are appropriate (Rossv Louise Wise Servs., Inc., 8 NY3d 478, 489 [2007]; see Litwin, 248 AD2d361). The survey that defendants commissioned gave defendant a reasonable and factual basis tobelieve that he owned the disputed area. This is not a case where the trespasser knew that he orshe had no ownership claim over the property (cf. Western N.Y. Land Conservancy, Inc. v Cullen, 66 AD3d 1461,1463 [2009], appeal dismissed 13 NY3d 904 [2009], lv denied 14 NY3d 705[2010], rearg denied 15 NY3d 746 [2010]; Ligo, 244 AD2d 852). Notably, onceplaintiffs commenced this action and placed defendants on notice that they were asserting title tothe disputed area by adverse possession, there were no further incidents of trespass by defendant.We therefore agree with defendants that the award of punitive damages should be vacated.Present—Scudder, P.J., Centra, Fahey, Green and Gorski, JJ.