Opinion
CA 02-00932
December 30, 2002.
Appeal from a judgment of Supreme Court, Erie County (Michalek, J.), entered December 4, 2001, awarding plaintiff the sum of $285,000 upon a jury verdict against defendants Randon P. Hillock and Susan L. Hillock, doing business as Hidden Oaks Subdivision.
HISCOCK BARCLAY SAPERSTON DAY, BUFFALO (BRUCE S. ZEFTEL OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
WEBSTER SZANYI LLP, BUFFALO (KEVIN A. SZANYI OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., GREEN, PINE, HAYES, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum:
Defendants Randon P. Hillock and Susan L. Hillock, doing business as Hidden Oaks Subdivision, the owners of property being developed as a residential subdivision, were required by the Town of Grand Island (Town) to remedy a drainage problem on their property that affected adjacent properties. Engineers hired by defendants proposed drainage work on property owned by plaintiff, and defendants were informed by the Town engineer that they needed either an easement or permission from plaintiff to perform that work. Defendants thereafter deepened, widened and lengthened a ditch on plaintiff's property. Plaintiff commenced this action, which proceeded to trial on the trespass cause of action for which plaintiff sought compensatory and punitive damages. Supreme Court directed a verdict in favor of plaintiff on the issue of liability, and the jury returned a verdict awarding plaintiff $35,000 in compensatory damages and $250,000 in punitive damages.
We conclude that the court properly directed a verdict in favor of plaintiff on the issue of liability. Although defendants contended that they obtained permission to enter the property from the son-in-law of plaintiff's president, they failed to establish that the son-in-law had either actual or apparent authority to grant that permission. "Essential to the creation of apparent authority are words or conduct of the principal, communicated to a third party, that give rise to the appearance and belief that the agent possesses authority to enter into a transaction. The agent cannot by his own acts imbue himself with apparent authority" ( Hallock v. State of New York, 64 N.Y.2d 224, 231). Here, defendants presented no evidence of a communication by plaintiff's president to them upon which they were entitled to rely.
Defendants further contend that the evidence is legally insufficient to support the award of either compensatory or punitive damages ( see Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499) and that, in any event, the award of damages is against the weight of the evidence ( see generally Lolik v. Big V Supermarkets, 86 N.Y.2d 744, 746; Cohen, 45 N.Y.2d at 499). We conclude that the award of compensatory damages is supported by legally sufficient evidence and is not against the weight of the evidence where, as here, the parties presented conflicting expert testimony with respect to the effect of the unauthorized excavation on the value of plaintiff's property ( see Kirkpatrick v. Timber Log Homes, 190 A.D.2d 1072). We further conclude that the award of punitive damages is supported by legally sufficient evidence and is not against the weight of the evidence. The evidence establishes that defendants knew that plaintiff owned the property; they intentionally excavated the ditch on plaintiff's property without plaintiff's knowledge or consent; and they falsely represented to others that they had permission ( see Golonka v. Plaza at Latham, 270 A.D.2d 667, 670-671; see also Ligo v. Gerould, 244 A.D.2d 852, 853; Chlystun v. Kent, 185 A.D.2d 525, 527).
Contrary to defendants' further contention, neither the award of compensatory damages nor the award of punitive damages is excessive. The award of compensatory damages is supported by the testimony of plaintiff's expert and plaintiff's president. Under the circumstances of this case, the award of punitive damages is appropriate and bears a reasonable relation to the "`harm done and the flagrancy of the conduct causing it'" ( Suffolk Sports Ctr. v. Belli Constr. Corp., 241 A.D.2d 546, 547, quoting Rupert v. Sellers, 48 A.D.2d 265, 269; see Chlystun, 185 A.D.2d at 527). "[P]unitive damages are intended to act as a deterrent to the offender[s] `and to serve as a warning to others. They are intended as punishment for gross misbehavior for the good of the public'" ( Home Ins. Co. v. American Home Prods. Corp., 75 N.Y.2d 196, 203; see Hartford Acc. Indem. Co. v. Village of Hempstead, 48 N.Y.2d 218, 226). The award of punitive damages herein, which diminishes defendants' profit on a business venture, serves that purpose.