MICHAEL VETERE JR. et al., Respondents,
PEMBROOKE LAND DEVELOPMENT LLC, Defendant, and AMERITECH LAND DEVELOPMENT, INC., et al., Appellants.
Calendar Date: November 15, 2017
& 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.
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.
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
. 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.
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.
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 ). 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 [internal quotation marks and
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 facilitate their later removal by
Ameritech. Pettinella further testified that he inspected the
property after Smith completed his work and did not see any
trees that were cut in addition to those that had been marked
for removal from Pembrooke's property. Ameritech also
submitted the deposition testimony of Smith, who corroborated
Pettinella's testimony and who further testified that he
only cut the trees marked for removal from the Pembrooke
property. Ameritech also relied on the deposition testimony
of Randall Winne, an employee who assisted Smith with the
project, who testified that he and Smith removed trees only
from the Pembrooke property. Lastly, Ameritech submitted
Vetere's deposition, in which Vetere testified that
neither he, his mother - who lives on the property - nor his
brothers knew who cut the trees or when they were removed.
Such evidence was sufficient to meet Ameritech's burden
of establishing prima facie entitlement to summary judgment.
Inasmuch as neither plaintiffs nor Smith opposed
Ameritech's motion for summary judgment dismissing the
amended complaint and Smith's cross claims,
Ameritech's motion should have been granted (see
Vernam v Hyster Co., 163 A.D.2d 709, 709 ).
support of his motion for summary judgment, Smith submitted
his own deposition testimony, in which he testified that he
had been hired by Ameritech to remove trees on
Pembrooke's property in preparation for construction of a
home. Smith stated that the trees that he was instructed to
cut were marked by a ribbon and that the identified trees
were generally located in the area where the foundation of
the home was to be built in the center of the Pembrooke
property. Notably, Smith specifically denied cutting any
trees on plaintiffs' property. He further testified that
he left stumps 18-24 inches tall where he cut trees and noted
that trees that had been removed from plaintiffs'
property were cut "flush to the ground." Moreover,
Smith noted that his testimony with regard to marking and
removing trees from the Pembrooke property was corroborated
by Pettinella's testimony and that Vetere admitted in his
deposition testimony that he did not see Smith remove the
trees from plaintiffs' property. Such evidence was
sufficient to meet Smith's burden of establishing prima
facie entitlement to summary judgment.
opposition to Smith's summary judgment motion, plaintiffs
submitted Vetere's deposition testimony, in which he
testified that he believed that the trees on plaintiffs'
property had been recently cut because there were woodchips
around the tree stumps. Circumstantial evidence may be used
to defeat a motion for summary judgment (see Kennedy v
Atlas Fence, Inc., 90 A.D.3d 1122, 1124 ;
Zablow v DiSavino, 22 A.D.3d 748, 749 ), and
the evidence submitted by plaintiffs that the trees were
removed from their property without their permission in the
immediate vicinity where only Smith and his employee were
working is sufficient to show the existence of a triable
issue of fact (see ...