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Iny v. Collom

August 15, 2006

SOL INY, RESPONDENT,
v.
ROBERT COLLOM, APPELLANT.



Accepted for Miscellaneous Reports Publication

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, December 13, 2006

{**13 Misc 3d at 76} OPINION OF THE COURT

Memorandum

Judgment, insofar as appealed from, reversed without costs and judgment directed to be entered in favor of defendant dismissing the action on condition that, within 60 days of the date of the order entered hereon, defendant serve upon plaintiff and file with the clerk of the court below an affidavit attesting to the fact that the subject tree has been removed; otherwise judgment, insofar as appealed from, affirmed without costs.

In this small claims action, the record establishes that the roots of a tree situated on defendant's property damaged the wall of a garage on plaintiff's property. At trial, plaintiff indicated that prior to commencing this small claims action, he had sought to have the objectionable tree removed, which he felt would have afforded him the most complete relief, but the defendant had refused his request. Plaintiff, thereafter, commenced the instant small claims action seeking to recover the sum of $2,100. While a small claims court is a court of limited jurisdiction and lacks the authority to grant any equitable remedy, such as directing the removal of a tree (see UDCA 1801; see generally UDCA 209), under the circumstances presented, substantial justice would have been most completely rendered had the court awarded judgment in favor of defendant dismissing the action on condition that he remove the subject tree within a specified period of time (see UDCA 1805); otherwise, upon defendant's failure to remove the tree, judgment should have been entered in favor of plaintiff in the sum of $2,100, the sum plaintiff established as his damages. We note that, with respect to the issue of liability, it cannot be said that the determination of the court below was so clearly erroneous or shocking as to fail to render substantial justice between the parties (UDCA 1807; see Forte v Bielecki, 118 AD2d 620, 621 [1986]; Scaringe v Holstein, 103 AD2d 880 [1984]).

Lippman, J. (dissenting and voting to affirm the judgment).

The judgment of the trial court awarding plaintiff the principal sum of $2,100 in damages based on plaintiff's nuisance claim{**13 Misc 3d at 77} and dismissing defendant's counterclaim for harassment should be affirmed.

This is a small claims action arising from the invasion of roots from defendant's tree (caliber of 66 inches) onto plaintiff's property located in Oceanside, New York, which is causing damage to the rear wall of plaintiff's garage. The tree is located six to eight inches from the common boundary line. Defendant has lived in the house since 1964, and the tree has been there since he moved in. From the evidence adduced at trial, it is undisputed that the tree predates plaintiff's garage and that the garage was built approximately one foot from the property line. At trial, plaintiff testified that the garage was built at the same time his house was built.

The roots of the tree over time have invaded the garage wall causing a large crack (1½ to 2 inches in width) to occur down the rear wall. It is undisputed that plaintiff had previously notified defendant of the damage occurring to his garage and that he and other neighbors had approached defendant in writing in September 2003, and two subsequent times in October 2003, to request permission to take down the tree at no cost to defendant. Defendant testified that he declined plaintiff's offer to cut down the tree because he was opposed to cutting down trees, and because it is his view that too many of his neighbors have cut down their trees.

At the close of trial, defendant requested that the court dismiss the action and argued, based on various cases he had provided to the court, that it is the responsibility of the adjoining property owner to trim back branches that extend over the property line, and that to the extent any damage occurs because of the branches extending over the property line, it is the adjoining property owner who is responsible for that damage since the tree and its growth are acts of nature. While defendant did not articulate his reason for relying on negligence cases involving tree branches causing damage to an adjoining property, it would appear that defendant was requesting that the court extend the rule found in those cases to cases involving tree roots.

The trial court found that plaintiff had sustained his burden of proof on his claim sounding in nuisance and awarded plaintiff $2,100 in damages (i.e., the cost to repair the wall). The court reviewed the law on nuisance and found that the cases "set forth that a plaintiff must resort to 'self help' in the first instance that is, cutting back the offending{**13 Misc 3d at 78} overhanging branches or encroaching tree roots before instituting a law suit against the owner of the tree. However, the vast majority of these cases apply to problems with overhanging branches, not tree roots" (Iny v Collom sub nom. Iny v Collum, 4 Misc 3d 1009[A], 2004 NY Slip Op 50795[U], *1 [2004]).

In this regard, the court found that "In reviewing the photographs entered into evidence and listening to the testimony of the parties to this law suit, it is apparent that plaintiff's garage is only one foot from his rear property line and that area has been utilized by the defendant. It would be almost impossible for plaintiff to remain on ...


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