Opinion
2003-1240 RIC.
Decided June 23, 2004.
Appeal by plaintiff, on the grounds of inadequacy, from a small claims judgment of the Civil Court, Richmond County (P. Straniere, J.), entered June 3, 2003, awarding plaintiff the principal sum of $120, representing $30 in nominal damages and $90 in treble damages.
Judgment unanimously modified by increasing the award in favor of plaintiff to the principal sum of $3,000; as so modified, affirmed without costs.
PRESENT: PESCE, P.J., ARONIN and PATTERSON, JJ.
In this small claims action, plaintiff sought to recover damages when defendant trespassed upon his land. Plaintiff testified that he phoned Mr. LaRocca (defendant's president) on June 4, 2002 and informed him that his property line extended three feet beyond his chain link fence and he did not want any trees removed from said area. In addition, plaintiff mailed Mr. LaRocca a letter that same month reiterating what they had discussed on June 4, 2002. Moreover, plaintiff erected a two-foot rabbit guard fence in front of the trees on his property line along with yellow tape with signs affixed thereto specifically stating that the demarcated area was his property and was not to be cleared. Despite the foregoing, on September 10, 2002, defendant cut down 30 trees on plaintiff's property. Although defendant's president testified that defendant only cut down those trees which were on its property or on the property line, a review of the photographs admitted into evidence clearly shows that the lower court correctly found that defendant cut down trees which were on plaintiff's property. Under the circumstances, plaintiff established a prima facie case of trespass. While plaintiff failed to establish his damages, to wit, the difference in the value of the property immediately before and immediately after the act complained of or, in certain instances, the value of the destroyed trees ( see Evans v. Keystone Gas Co., 148 NY 112; Nichols v. New York Pennsylvania Tel. Tel. Co., 126 App Div 184; 36 NY Jur 2d, Damages § 78), we note that even in the absence of any showing of actual damages, plaintiff is entitled to an award of nominal damages ( see Ligo v. Gerould, 244 AD2d 852). Therefore, the small claims court's award of nominal damages of $30 will not be disturbed ( see Ross v. Friedman, 269 AD2d 584).
Punitive damages may be awarded where a person deliberately trespasses onto the land of another and injures that person's property ( see Litwin v. Town of Huntington, 248 AD2d 361; 2 Dobbs, Torts § 56, at 114-115 [2001]). We are of the opinion that defendant's intentional act of trespass and deliberate damage to plaintiff's property, under the circumstances presented, warrants the imposition of punitive damages, as limited by the court's monetary jurisdictional limit, in the sum of $2,970.
We note that treble damages may be awarded where a person cuts down trees on the land of another without the owner's consent and does so voluntarily and without "probable cause" to believe that the land was his own ( see RPAPL 861; see generally 75A NY Jur 2d, Logs and Timber § 32). Inasmuch as the lower court noted in its decision that plaintiff did not seek to recover treble damages in this small claims action and, in any event, our determination herein awards plaintiff the monetary jurisdictional limit of the court absent such treble damages, the award of treble damages is stricken. In light of the foregoing, substantial justice requires that the judgment be modified by increasing the amount awarded plaintiff to the sum of $3,000.