Opinion
2016-963 W C NO.
06-15-2017
Harold Coffey and Joan Coffey, Respondents, v. Donn Gerelli and Alana Jessie, Appellants.
Michele Bonsignore, Esq., for appellants. Harold Coffey and Joan Coffey, respondents pro se.
PRESENT: :
Michele Bonsignore, Esq., for appellants.
Harold Coffey and Joan Coffey, respondents pro se.
Appeal from a judgment of the Justice Court of the Village of Croton-On-Hudson, Westchester County (Lisa R. M. Wolland, J.), entered April 10, 2016. The judgment, after a nonjury trial, awarded plaintiffs the total sum of $322.
ORDERED that the judgment is reversed, without costs, and the matter is remitted to the Justice Court for the entry of a judgment dismissing the action.
In this small claims action, plaintiffs, who are neighbors of defendants, seek to recover expenses arising from defendants' removal of branches from plaintiffs' pine tree, which overhung onto defendants' property. At a nonjury trial, plaintiff Harold Coffey testified that he had given permission to defendants to prune the tree, that he had watched the actual pruning, and that defendants had removed too many branches and caused substantial damage to the tree. Plaintiffs introduced into evidence, among other things, a copy of a report from a tree expert that recommended "[s]upplemental care" to "support the metabolic processes within the tree," although it concluded that the structural stability of the tree was the same as it had been before the trimming. Plaintiffs sought to recover the money they had spent for the report and for the supplemental care of the tree to date, plus money for projected expenses. Defendants claimed that the tree is healthy and that they had only pruned the branches hanging over their property. Following the trial, the Justice Court awarded plaintiffs the total sum of $322.
In a small claims action, this court's review is limited to a determination of whether "substantial justice has . . . been done between the parties according to the rules and principles of substantive law" (UJCA 1807; see UJCA 1804; Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125 [2000]). Furthermore, the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court's opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Vizzari v State of New York, 184 AD2d 564 [1992]; Kincade v Kincade, 178 AD2d 510, 511 [1991]). This deference applies with greater force to judgments rendered in the Small Claims Part of the court (see Williams v Roper, 269 AD2d at 126).
In our opinion, the judgment failed to render substantial justice in accordance with the rules and principles of substantive law (see UJCA 1804, 1807). When the branches of a tree overhang the property of an adjoining landowner, the adjoining landowner may resort to self help to remove those branches (see 1 NY Jur 2d, Adjoining Landowners § 65). The right to self help extends to ordinary trimming and clipping, and does not extend to the destruction of, or injury to, the main support systems of the tree; nor does it extend past the adjoining landowner's property line (see 1 NY Jur 2d, Adjoining Landowners § 65; see also Turner v Coppola, 102 Misc 2d 1043 [1980], affd 78 AD2d 781 [1980]).
The Justice Court did not set forth its basis for holding defendants liable. There was no evidence that the trimming of the tree on defendants' side of the property caused the destruction of, or injury to, the main support systems of the tree. Moreover, even if plaintiffs could recover for the supplemental care to rehabilitate and restore the tree (see e.g. 36 NY Jur 2d Damages §§ 82, 83), plaintiffs failed to establish the cost thereof by means of expert testimony, a paid invoice, or two itemized estimates (see UJCA 1804). Consequently, plaintiffs failed to establish their damages.
Accordingly, the judgment is reversed and the matter is remitted to the Justice Court for the entry of a judgment dismissing the action.
Tolbert, J.P., Garguilo and Brands, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: June 15, 2017