Emerick Gross Real EState, L.P. v. George A. Fuller Const. Mgmt., Inc.

907 N.Y.S.2d 66

76 A.D.3d 702

EMERICK GROSS REAL ESTATE, L.P., appellant-respondent,

v. GEORGE A. FULLER CONSTRUCTION MANAGEMENT, INC., et al., defendants,George A. Fuller Company, Inc., respondent-appellant.

Supreme Court, Appellate Division, Second Department, New York.

Aug. 31, 2010.

Siller Wilk LLP, New York, N.Y. (M. William Scherer of counsel), for appellant-respondent.

Rafter & Associates, PLLC, New York, N.Y. (Howard K. Fishman of counsel), for respondent-appellant.

REINALDO E. RIVERA, J.P., ANITA R. FLORIO, DANIEL D. ANGIOLILLO, and LEONARD B. AUSTIN, JJ.

[907 N.Y.S.2d 67, 76 A.D.3d 702]

In an action, inter alia, to recover treble damages pursuant to RPAPL 861, the plaintiff appeals from a judgment of the Supreme Court, Westchester County (Donovan, J.), entered January 26, 2009, which, upon a jury verdict finding the defendant George A. Fuller Company, Inc., 50% at fault for the removal of one of the plaintiff's trees and the debranching of another, and that the plaintiff sustained damages in the principal sum of only $40,000, and upon an order of the same court entered December 23, 2008, among other things, denying that branch of its motion which was for an award of treble damages with respect to the debranched tree, is in its favor and against the defendant George A. Fuller Company, Inc., in the principal sum of only $40,000 ($10,000 for the debranched tree and $30,000 for the removed tree), and failed to award treble damages with respect to the debranched tree, and the defendant George A. Fuller Company, Inc., cross-appeals from the same judgment, which is in favor of the plaintiff and against it.

ORDERED that the judgment is modified, on the law, by deleting the provision thereof in favor of the plaintiff and against the defendant George A. Fuller Company, Inc., in the principal sum of $10,000 for the debranched tree; as so modified, the judgment is affirmed insofar as appealed and cross-appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Westchester County, for a trial on the issue of treble damages, if any, resulting from the damage caused to the debranched tree, and the entry thereafter of an appropriate amended judgment.

During the construction of a parking garage and related structures on certain property located adjacent to the plaintiff's property, two trees on the plaintiff's property were damaged. Specifically, one tree was cut down (hereinafter the first tree) and branches of another tree were removed (hereinafter the second tree). The plaintiff commenced this action against, among others, the defendant George A. Fuller Company, Inc. (hereinafter GAFCO), the general contractor on the project, seeking, inter alia,...