St. George's Operating & Improvement Co., Inc. v Wilson

St. George's Operating & Improvement Co., Inc. v Wilson 2011 NY Slip Op 00673 Decided on February 1, 2011 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 1, 2011
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
WILLIAM F. MASTRO, J.P.
CHERYL E. CHAMBERS
SHERI S. ROMAN
JEFFREY A. COHEN, JJ.
2009-08543
(Index No. 19862/06)

[*1]St. George's Operating & Improvement Co., Inc., respondent,

v

James O. Wilson, appellant.




Joel D. Katims, P.C., Stony Brook, N.Y., for appellant.
Farrell Fritz, P.C., Uniondale, N.Y. (Bruce N. Roberts of counsel),
for respondent.


DECISION & ORDER

In an action, inter alia, to quiet title to real property and to recover damages for injury to real property pursuant to RPAPL 861, the defendant appeals from a judgment of the Supreme Court, Suffolk County (Weber, J.), entered June 24, 2009, which, upon an order and interlocutory judgment (one paper) of the same court entered August 17, 2007, granting the plaintiff's motion for summary judgment on the issue of liability on the cause of action to recover damages for injury to real property pursuant to RPAPL 861, and after a nonjury trial on the issue of damages on that cause of action, is in favor of the plaintiff and against him in the principal sum of $23,375.08.

ORDERED that the judgment is affirmed, with costs.

Contrary to the defendant's contention, the plaintiff produced ample evidence from which the trial court could properly conclude that the defendant entered upon the plaintiff's land and removed trees, thus entitling the plaintiff to an award of damages pursuant to RPAPL 861 (see e.g. Spano v Kline, 50 AD3d 1499, 1500; Zablow v DiSavino, 22 AD3d 748, 749).

Furthermore, the defendant's contention that the plaintiff's evidence of damages was flawed and speculative is without merit. The damages award was supported by an expert appraisal that set forth the objective facts underlying the valuation of the removed trees and that employed methods of calculation consistent with the statute (see RPAPL 861 [2], [3]; see generally Western N.Y. Land Conservancy, Inc. v Cullen, 66 AD3d 1461, 1462-1464).

The defendant's remaining contention is without merit.
MASTRO, J.P., CHAMBERS, ROMAN and COHEN, JJ., concur. [*2]

ENTER:

Matthew G. Kiernan

Clerk of the Court