Wurtz v Long Is. R.R.

[*1] Wurtz v Long Is. R.R. 2020 NY Slip Op 50247(U) Decided on February 21, 2020 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 21, 2020
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, P.J., Cooper, Edmead, JJ.
570733/19

William H. Wurtz, Plaintiff-Respondent,

against

Long Island Railroad, Defendant-Appellant.

Defendant appeals from a judgment of the Small Claims Part of the Civil Court of the City of New York, New York County (Mary V. Rosado, J.), entered on or about June 28, 2018, after a nonjury trial, in favor of plaintiff and awarding him damages in the principal sum of $3,095.81.

Per Curiam.

Judgment (Mary V. Rosado, J.), entered on or about June 28, 2018, reversed, without costs, and judgment directed in favor of defendant dismissing the action.

Plaintiff commenced this Small Claims action against an abutting property owner, defendant Long Island Railroad, seeking to recover the cost of removing branches from two of defendant's trees, which overhung onto plaintiff's property. On this record, Civil Court's imposition of liability upon defendant did not achieve substantial justice consistent with substantive law principles (CCA 1807; Williams v Roper, 269 AD2d 125 [2000], lv dismissed 95 NY2d 898 [2000]), since there was no showing that the branches constituted a nuisance, trespass or caused any actual injury to plaintiff's abutting property (see Turner v Coppola, 102 Misc 2d 1043 [1980], affd 78 AD2d 781 [1980]; 1 NY Jur 2d, Adjoining Landowners §§ 65, 67 ["No land owner has a cause of action from the mere fact that the branches of an innocuous tree belonging to an adjoining owner overhangs the premises, as the plaintiff could be protected by self help consisting of a reasonable cutting of branches to the extent that they invade the property"]). In any event, even if liability was properly imposed, plaintiff failed to establish the cost of removing the tree branches by a paid invoice, or two itemized estimates (see Coffey v Gerelli, 56 Misc 3d 127[A], 2017 NY Slip Op 50817[U][App Term, 2d Dept, 9th & 10th Jud Dists 2017]).

Although the trial court did not render a decision in conformity with CPLR 4213(b), we find, upon our independent review of the complete record (see Weckstein v Breitbart, 111 AD2d 6, 8 [1985]), that the evidence does not support the court's determination.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur

Decision Date: February 21, 2020