Lico v. Tarantelli

215 A.D.2d 999, 627 N.Y.S.2d 126

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 18, 1995
• Status: Published

Opinion

Spain, J. Appeal from an order of the Supreme Court (Dier, J.), entered February 4, 1994 in Warren County, which denied plaintiff’s motion for summary judgment.

Plaintiff commenced this action seeking an order declaring that he is vested with absolute unencumbered title in fee in certain property located in Warren County and, further, for damages for the unlawful and wrongful removal of timber from the property by defendants and defendants’ subsequent conversion of the timber to their own use. Defendants answered and raised multiple affirmative defenses. Thereafter, plaintiff moved for an order granting summary judgment which was denied by Supreme Court. Plaintiff appeals.

Assuming, arguendo, that plaintiff’s submission of a deed, an abstract of title, a survey map and numerous affidavits in support of the motion for summary judgment established an entitlement to summary judgment, the burden then shifted to defendants to set forth genuine triable issues of fact (see, Zuckerman v City of New York, 49 NY2d 557, 562; Taylor-Wamer Corp. v Minskoff, 167 AD2d 382, Iv denied 78 NY2d 856). Defendants, in opposition to the motion, have submitted three affidavits, including one from Andrew McCormack, a licensed land surveyor. The affidavits do not dispute the location of the lands from which the timber was removed; however, they clearly raise triable issues of fact regarding the ownership of said land. We cannot conclude, as a matter of law, that the timber was removed from lands owned by plaintiff. Supreme Court’s order must therefore be affirmed.

Mikoll, J. P., Crew III, Casey and Yesawich Jr., JJ., concur. Ordered that the order is affirmed, with costs.