Jones v. Castlerick, LLC

• Decision Date: 07 May 2015
• Docket Number: 519369
• Citation: 128 A.D.3d 1153,8 N.Y.S.3d 727,2015 N.Y. Slip Op. 03904
• Parties: Nina Anson Szarkowski JONES et al., Respondents–Appellants, v. CASTLERICK, LLC, Appellant–Respondent, and Jonathan Rick et al., Respondents.
• Court: New York Supreme Court — Appellate Division

128 A.D.3d 1153
8 N.Y.S.3d 727
2015 N.Y. Slip Op. 03904

Nina Anson Szarkowski JONES et al., Respondents–Appellants
v.
CASTLERICK, LLC, Appellant–Respondent
and
Jonathan Rick et al., Respondents.

519369

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

May 7, 2015.

8 N.Y.S.3d 728

Douglas J. Rose, Pittsfield, Massachusetts, for appellant-respondent.

Tuczinski, Cavalier & Gilchrist, P.C., Albany (Jonathon B. Tingley of counsel), for respondents-appellants.

Before: PETERS, P.J., LAHTINEN, ROSE and DEVINE, JJ.

Opinion

LAHTINEN, J.

128 A.D.3d 1153

(1) Cross appeals (a) from an order of the Supreme Court (Zwack, J.), entered December 20, 2013 in Columbia County, which partially denied defendants' motion for summary judgment dismissing the complaint, and (b) from an order of said court, entered May 13, 2014 in Columbia County, which assessed certain damages against defendant Castlerick, LLC, and (2) appeal from the judgment entered thereon.

Defendants Jonathan Rick and George Castleman are principals of defendant Castlerick, LLC, which owned unimproved land adjoining plaintiffs' real property in the Town of New Lebanon, Columbia County. Robert Kavanaugh approached defendants about allowing him to cut timber on Castlerick's property, and defendants verbally agreed to allow such work for a portion of the profits. During the course of the work, Kavanaugh entered and cut timber on plaintiffs' property. Plaintiffs commenced this action against defendants alleging various theories of liability. Kavanaugh—who ostensibly could not be located—was not made a party to the action, and defendants moved for summary judgment dismissing the complaint upon the ground that they were not liable

8 N.Y.S.3d 729

for the acts of Kavanaugh, who defendants contended acted as an independent contractor.

Supreme Court, among other things, dismissed all causes of action as to Rick and Castleman, individually, and determined that damages would be limited to $250 per tree. Although plaintiffs had not made a cross motion, the court essentially granted partial summary judgment to plaintiffs against Castlerick as the court found that plaintiffs were entitled to

128 A.D.3d 1154

damages from Castlerick. The court directed the parties to submit affidavits regarding the number of trees destroyed, and stated that, after its review of the affidavits, it would decide whether a hearing on damages was necessary. Plaintiffs and Castlerick cross-appealed from the order. The parties, among other things, submitted affidavits regarding damages as directed. Supreme Court rejected as incredible the calculation of plaintiffs' expert that 380 trees had been cut, and it accepted the estimate of defendants' expert of 87 cut trees, resulting in total damages of $21,750. Plaintiffs and Castlerick cross-appealed from this second order, and plaintiffs appealed from the ensuing judgment entered thereon.

It was error to grant summary judgment relief to defendants for issues not raised in their motion papers including, among other things, dismissing the complaint as to Rick and Castleman upon the ground that the property was owned by Castlerick. These issues were not properly before Supreme Court. Defendants' motion for summary judgment was based upon the assertion that Kavanaugh was an independent contractor and that they therefore were not liable for his acts. The parties were not notified that additional issues would be addressed in the motion and, to the extent that defendants' reply papers referenced the ownership issue, “reply papers are intended to address contentions raised in opposition to the motion and not to introduce new arguments in support of the motion” (N.A.S. Partnership v. Kligerman, 271 A.D.2d 922, 923, 706 N.Y.S.2d 753 [2000] ). Plaintiffs were “not afforded an opportunity to address the new argument[s]” (Matter of Allstate Ins. Co. v. Dawkins, 52...