Vetere v. Pembrooke Land Dev. LLC, 524921

• Decision Date: 21 December 2017
• Docket Number: 524921
• Citation: 156 A.D.3d 1195,68 N.Y.S.3d 165
• Parties: Michael VETERE Jr. et al., Respondents, v. PEMBROOKE LAND DEVELOPMENT LLC, Defendant, and Ameritech Land Development, Inc., et al., Appellants.
• Court: New York Supreme Court — Appellate Division

156 A.D.3d 1195

68 N.Y.S.3d 165

Michael VETERE Jr. et al., Respondents,

v. PEMBROOKE LAND DEVELOPMENT LLC, Defendant,andAmeritech Land Development, Inc., et al., Appellants.

524921

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

Calendar Date: November 15, 2017

Decided and Entered: December 21, 2017

Keane & Bernheimer, PLLC, Valhalla (Jason M. Bernheimer of counsel), for Ameritech Land Development, Inc., appellant.

Kessler Law Offices, Westtown (Leonard Kessler of counsel), for Richard W. Smith, appellant.

Mainetti, Mainetti & O'Connor, PLLC, Kingston (John T. Casey Jr. of counsel), for respondents.

Before: Egan Jr., J.P., Rose, Devine, Mulvey and Rumsey, JJ.

MEMORANDUM AND ORDER

Rumsey, J.

Appeal from an order of the Supreme Court (Mott, J.), entered July 21, 2016 in Ulster County, which, among other things, denied motions by defendants Ameritech Land Development, Inc. and Richard W. Smith for summary judgment dismissing the amended complaint against them.

In October 2011, plaintiff Michael Vetere Jr. (hereinafter Vetere) noticed that eight trees had recently been cut and removed from property that he jointly owned with his brothers, plaintiffs Frances Vetere and Ronald Vetere, located near its boundary with an adjoining property, where a new home was in the process of being constructed. Plaintiffs commenced an action against defendant Pembrooke Land and Development LLC and Wayne Nussbickel—the owners of the properties abutting plaintiffs' land—stating causes of action for violation of RPAPL 861, trespass and conversion. Pembrooke joined issue, moved for summary judgment dismissing the complaint against it and commenced a third-party action against defendant Ameritech Land Development, Inc., its partner in the home construction project, and defendant Richard W. Smith, Ameritech's subcontractor.¹ Ameritech and Smith joined issue and separately cross-moved for summary judgment dismissing the third-party complaint. Plaintiffs opposed Pembrooke's motion for summary judgment and cross-moved to add Ameritech and Smith as defendants in the primary action. Supreme Court granted Pembrooke's motion, deemed moot the cross motions seeking summary judgment dismissing the third-party complaint and granted plaintiffs' motion to amend the complaint to add Ameritech and Smith as defendants in the primary action.

Plaintiffs subsequently filed an amended complaint asserting two causes of action against Ameritech and Smith (hereinafter collectively referred to as defendants) based on substantially the same allegations as the original action. After joinder of issue, Ameritech moved for summary judgment dismissing the amended complaint and the cross claims asserted against it by Smith. Plaintiffs did not oppose Ameritech's motion. Smith also moved for summary judgment dismissing the amended complaint, but he did not seek summary judgment dismissing Ameritech's cross claims nor did he oppose Ameritech's summary judgment motion. Plaintiffs opposed Smith's summary judgment motion. Supreme Court denied defendants' motions, finding that they failed to meet their prima facie burdens of establishing entitlement to summary judgment. Defendants now appeal.

Although they asserted various theories of liability in the amended complaint, plaintiffs essentially sought damages for trespass and conversion based on allegations that defendants wrongfully entered upon plaintiffs' property and removed eight trees without plaintiffs' consent. Such allegations are sufficient to state a cause of action for treble damages pursuant to RPAPL 861(1) (see Jones v. Castlerick, LLC, 128 A.D.3d 1153, 1154, 8 N.Y.S.3d 727 [2015] ). Ameritech argued that it did not remove any trees from plaintiffs' property or direct Smith to do so. In that regard, a defendant is liable for trespass committed by an independent contractor if the defendant "directed the trespass or such trespass was necessary to complete the contract" ( id. at 1154–1155, 8 N.Y.S.3d 727 [internal quotation marks and citation omitted] ).

In support of its motion, Ameritech submitted the deposition testimony of Joseph Pettinella, one of its owners, who testified that Ameritech entered into an agreement to build a one-family residence on Pembrooke's property. Ameritech also submitted the deposition testimony of Albert Pettinella (hereinafter Pettinella), a co-owner of Ameritech, who testified that, when he walked Pembrooke's property with Smith before any work to clear the lot commenced, the boundary line with plaintiffs' property was clearly delineated by survey stakes. He further testified that he and Smith marked each tree that was designated for removal, that all trees marked for removal were located on Pembrooke's property and that he instructed Smith to leave the stumps at a height of 18–24 inches to...