Opinion
1261-20
04-08-2021
Xavier A. MUNIZ and Damaris Mone, Plaintiff v. Chuck SHEN, Defendant
Xavier Muniz and Damaris Mone, Plaintiffs Pro Se. Chuck Shen, Defendant Pro Se.
Xavier Muniz and Damaris Mone, Plaintiffs Pro Se.
Chuck Shen, Defendant Pro Se.
Adam Seiden, J.
Plaintiff brought this small claims proceeding to recover one thousand five dollars ($1,005.00) alleging that defendant came into his yard and cut down rare bamboo trees. Plaintiff claims to have planted the bamboo trees ten years earlier. He testified that defendant trespassed on his property and cut the trees with a saw.
Defendant alleges that he cut the bamboo only from his property and only the parts of the tree which hung over onto his property. He stated he did so to prevent ticks and mosquitos from entering his home.
Plaintiff resides at 346 South 4th Avenue and defendant resides at 350 South 4th Avenue. Plaintiff alleges that there is eight inches between the bamboo and property line. Defendant alleges there is two feet between the bamboo and property line and he did not need to enter plaintiff's property.
The law allows a property owner, without trespassing to cut any vegetation from a neighbors property that hangs over onto his property. ( Fliegman v. Rubin , 1 Misc 3d 127(A), 127A [2d Dept. 2003] (citing 1 NY Jur 2d, Adjoining Landowners § 57 ; 2 CJS, Adjoining Landowners § 62 ). However he must do so in a fashion that does not damage the vegetation. "The right to self-help is limited, in that an adjoining landowner's right to engage in self-help does not extend to the destruction or injury to the main support system of the tree" Id. (citing 1 NY Jur 2d. Adjoining Landowners § 57 ; see also 2 CJS, Adjoining Landowners §§ 62, 65 - 67 ). In the case before the Court, it is clear that defendant did more than cut those parts of plaintiff's bamboo plants that hung over his property. Whether he did so from his property or that of the plaintiff, he destroyed the plants.
The difficulty is in determining the level of damage. There is no testimony (only photographs) as to how many plants were destroyed, the current value of those plants destroyed and whether any are going to regrow. Plaintiff submitted one quote from Bamboo Garden for eight containers and shipping at $1,760.00. Plaintiff further submitted a Bamboo Garden receipt totaling $395.00 for eleven containers of varying plants, only three of which are similar to those plants in the quote from Bamboo Garden. Plaintiff brought a lawsuit, as previously stated, for $1,005.00.
After hearing the testimony of the parties, judging their credibility and after reviewing the exhibits, the Court finds for plaintiff in the sum of $395.00. Under small claims rules, which were explained to plaintiff, that is the only damage proven.
The above complies with the Court's statutory charge to do substantial justice between the parties.
The above constitutes the decision and order of the Court.