ARTHUR WILLIAMS v. STANLEY KURASZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3594-05T13594-05T1

ARTHUR WILLIAMS,

Plaintiff-Respondent,

v.

STANLEY KURASZ,

Defendant-Appellant.

_______________________________________________________

 

Submitted November 1, 2006 - Decided November 20, 2006

Before Judges Stern and Messano.

On appeal from the Superior Court of New

Jersey, Law Division, Special Civil Part,

Essex County, Docket No. SC-3924-05.

Richard B. Butler, attorney for appellant.

No brief filed on behalf of respondent.

PER CURIAM

Defendant appeals from an order of the Special Civil Part entering judgment for plaintiff in the amount of $2,521, and dismissing defendant's counterclaim. Defendant also appeals from the denial of his motion for a new trial.

The proofs at trial reveal that the parties were neighbors at the intersection of Boyden Avenue and Tuscan Road in Maplewood. According to plaintiff, defendant cut down a thirty-foot tall tree in plaintiff's backyard, and his "outside shower [used to "cool off [in] hot weather"] was damage[d], and vegetables in [his] garden were flattened and died." A six to eight foot tree stump was left after the tree was cut down.

Defendant testified "[t]he tree [was] a weed . . . not a tree," and he had a licensed tree trimmer cut it down, because the branches "were touching the power lines." Everything but the stump was "shredded" and removed from the premises. Defendant asserted the tree was cut down by reaching over his side of a fence on the property line.

The trial judge looked at photos of the tree before it was cut down, the stump, and remains of the shower and the vegetable garden. The garden contained "eggplant, zucchini squash, yellow squash, California cabbage, and tomatoes." Plaintiff installed the shower himself for between $100-$200, and asserted his total damages were "about $2000."

The judge dismissed the counterclaim seeking the costs of removal of the tree in order to prevent a safety hazard. She also determined damages, as follows:

So, what I am left with is the defendant's decision to take the law in his own hands, and to hire somebody to cut off a tree that's in the defendant's (sic) property -- on the defendant's (sic) property and leave a very, very unsightly six-foot plus or eight-foot plus stump, and the two sides cannot even agree upon the height of the fence, which I'm using to gauge the height of the stump that was left.

There's been no competent testimony at -- from the plaintiff with regard to how much it cost in damage to the vegetable garden, or how much it cost to replace the tree, or how much the outdoor shower was worth. Although, he can admit that it's not very much. However, the Court can conclude from P-1 for identification that the aesthetic damage to the property is great, and what was left is quite hideous looking, and I am going to award $2500 in damages, just based upon the damage to the property, based upon P-1 for identification, in addition, there's [$21] in court costs.

On this appeal, defendant contends "there was no expert testimony to prove any alleged property damage nor was there competent evidence to prove damages without expert testimony."

The photos admitted into evidence have not been presented to us. However, it is clear that the judge found plaintiff credible. Further, from the judge's description of the photos and the fact that a thirty-foot tree was cut down by a trespasser without authorization leaving a six to eight foot stump and destroying a shower and vegetable garden, we cannot say that the damages were not sufficiently proven or were excessive in amount. While expert testimony would have been appropriate and admissible, the absence of same in this case does not warrant reversal. See Leimgruber v. Claridge Assocs., Ltd. 73 N.J. 450 (1977) (discussing damages determination where trees were destroyed on private, residential property); Lancellotti v. Maryland Cas. Co., 260 N.J. Super. 579, 585 (App. Div. 1992) ("an insured owner of damaged or destroyed [personal] property may, without being qualified as an expert, testify to his own estimate of value").

Affirmed.

 

The Notice of Appeal also refers to the denial of a motion for reconsideration, but defendant's brief does not address any such motion. It appears that the motion for a new trial was filed by the defendant while still acting pro se, and he sought reconsideration of the judgment.

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A-3594-05T1

November 20, 2006