Whitaker v. McGee

168 A.D.2d 879, 564 N.Y.S.2d 554, 1990 N.Y. App. Div. LEXIS 15787

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 27, 1990
• Status: Published

Opinions

Weiss, J.

Appeal from a judgment of the Supreme Court (Ryan, Jr., J.), entered February 20, 1990 in Clinton County, upon a decision of the court in favor of plaintiffs.

The facts may be found in our previous decision when this case was before us (111 AD2d 459). There, we decided that the harvest of standing trees on plaintiffs’ property by defendants was, in the absence of proof, neither "casual nor involuntary” within the meaning of RPAPL 861, and awarded plaintiffs partial summary judgment on the issue of liability and remitted the case for a trial to determine the market value of the trees cut and award judgment for damages.

* Because defendants failed to sustain their burden of affirmatively proving that their taking was the result of good-faith negligence (RPAPL 861 [2] [a]; see, Bramam v Rochester Gas & Elec. Corp., 54 AD2d 174, 176), our granting of partial summary judgment on the issue of liability necessarily included an award of treble damages.

On October 19, 1987 the parties entered into a written stipulation of facts which provided, inter alia, that 885 tons of wood chips were taken from plaintiffs’ land and sold for $14,868. Supreme Court found plaintiffs’ damages to be $14,868 which, when trebled, amounted to $44,604. Credit was given for a $24,537 settlement by another party resulting in a judgment for $20,067, increased to $36,388.65 by interest, costs and disbursements.

Only defendants John J. McGee and Wilmington Dryer Company (hereinafter collectively referred to as defendants) have appealed and they have limited their argument solely to the question of whether the Supreme Court erred "in the manner in which it assessed market value, damages and treble damages”. Defendants essentially seek to reargue that which this court has already decided and which remains the law of this case. We have already held that they failed to sustain the affirmative burden of proving the cutting was casual or involuntary within the meaning of RPAPL 861 and therefore was unduly reckless. This finding entitles plaintiffs to the enhanced value of the trees, in this instance the market value of the wood chips into which they had been converted. Defendants’ contention that the damages should be limited to $1 per ton or $885 (the standing value of the trees) trebled is without merit. We specifically determined in the earlier appeal (111 AD2d 459, supra) that the value was to be the enhanced market value (supra, at 460, 462) and that plaintiffs were entitled to treble damages (supra, at 461-462). We decline to depart from our previous decision.

Judgment affirmed, with costs. Mahoney, P. J., Weiss, Mercure, JJ., concur.

RPAPL 861 (2) provides that a landowner may recover treble damages against one who cuts or disposes of treefe) on his land without permission, unless a defendant affirmatively proves that the taking was casual and involuntary or that the defendant had probable cause to believe the land was his own.