Fellows v. Fox

Appellate Division of the Supreme Court of New York

Fellows v. Fox

186 A.D.2d 1051, 588 N.Y.S.2d 493, 1992 N.Y. App. Div. LEXIS 11660

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 7, 1992

StatusPublished

This text of 186 A.D.2d 1051 (Fellows v. Fox) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fellows v. Fox, 186 A.D.2d 1051, 588 N.Y.S.2d 493, 1992 N.Y. App. Div. LEXIS 11660 (N.Y. Ct. App. 1992).

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Opinion

— Order and judgment unanimously affirmed without costs. Memorandum: The trial court’s finding that plaintiff Joseph J. Passero was not entitled to compensation for damage to his right-of-way by defendant’s logging activities is supported by the record. Although defendant’s activities caused some damage to the right-of-way, Passero failed to establish by sufficient evidence the specific damage that made the right-of-way worse after the logging than it was before. Passero also failed to establish the cost necessary for repairing any damage caused by defendant’s activities.

We reject defendant’s contention that plaintiffs should not have been compensated for damage to another right-of-way because their unincorporated association, which paid the costs of repair, was not a named plaintiff. The treasurer of that [1052]*1052association, who had the authority to sue on behalf of the association (General Associations Law § 12), was a named plaintiff, and defendant was not prejudiced by plaintiffs’ failure to plead the association as a party. In those circumstances, the trial court properly disregarded the technical defects in the pleading (see, Gianunzio v Kelly, 90 AD2d 623, 624; see also, CPLR 2001). (Appeals from Order and Judgment of Supreme Court, Monroe County, Affronti, J. — Property Damage.) Present — Denman, P. J., Green, Balio, Boehm and Davis, JJ.

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— Order and judgment unanimously affirmed without costs. Memorandum: The trial court’s finding that plaintiff Joseph J. Passero was not entitled to compensation for damage to his right-of-way by defendant’s logging activities is supported by the record. Although defendant’s activities caused some damage to the right-of-way, Passero failed to establish by sufficient evidence the specific damage that made the right-of-way worse after the logging than it was before. Passero also failed to establish the cost necessary for repairing any damage caused by defendant’s activities.

We reject defendant’s contention that plaintiffs should not have been compensated for damage to another right-of-way because their unincorporated association, which paid the costs of repair, was not a named plaintiff. The treasurer of that [1052]*1052association, who had the authority to sue on behalf of the association (General Associations Law § 12), was a named plaintiff, and defendant was not prejudiced by plaintiffs’ failure to plead the association as a party. In those circumstances, the trial court properly disregarded the technical defects in the pleading (see, Gianunzio v Kelly, 90 AD2d 623, 624; see also, CPLR 2001). (Appeals from Order and Judgment of Supreme Court, Monroe County, Affronti, J. — Property Damage.) Present — Denman, P. J., Green, Balio, Boehm and Davis, JJ.

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Bluebook (online)

186 A.D.2d 1051, 588 N.Y.S.2d 493, 1992 N.Y. App. Div. LEXIS 11660, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fellows-v-fox-nyappdiv-1992.

Opinion

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