Opinion
CA 01-02464
November 15, 2002.
Appeal from a judgment of Supreme Court, Jefferson County (Gilbert, J.), entered June 29, 2001, which awarded plaintiffs $22,014.80 upon a jury verdict rendered in plaintiffs' favor.
ANTONUCCI LAW OFFICE, WATERTOWN (DAVID P. ANTONUCCI OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
CONBOY, McKAY, BACHMAN KENDALL, LLP, WATERTOWN (STEPHEN W. GEBO OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.
PRESENT: PIGOTT, JR., P.J., HAYES, KEHOE, BURNS, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed with costs.
Memorandum:
These consolidated appeals concern two separate property disputes involving three parcels. Action No. 1, which culminated in the judgment on appeal in appeal No. 2, was commenced by Everett VanCamp and Edgewood Trailer Park, Inc. (collectively, VanCamp) against, inter alia, John Gracey. Insofar as relevant herein, that action sought to determine the boundary between the lands of VanCamp and John Gracey. Judgment was entered dismissing the complaint in that action upon a jury verdict resolving the boundary dispute in favor of John Gracey and Supreme Court's adjudging that the boundary shall be established in accordance with a survey prepared by John Gracey's surveyor. VanCamp contends on appeal that "natural monuments should be favored over artificially created points in determining boundaries" and that John Gracey's "surveyor should have reconciled the boundaries and deed descriptions if possible."
A jury verdict should not be set aside as contrary to the weight of the evidence unless the verdict could not have been reached on any fair interpretation of the evidence ( see Coty v. Steigerwald, 291 A.D.2d 796, 797, lv denied 98 N.Y.2d 604; Nicastro v. Park, 113 A.D.2d 129, 133-134). Here, the jury was faced with conflicting expert testimony and was entitled to credit the conclusions of John Gracey's surveyor over those of the surveyor retained by VanCamp.
Action No. 2, which culminated in the judgment in appeal No. 1, was commenced by Michael Gracey and Cecelia Gracey (collectively, the Graceys), owners of a distinct parcel adjoining VanCamp's parcel. The Graceys sued VanCamp for damages on various theories, but essentially sought damages for trespass and conversion of their timber. Judgment was entered awarding the Graceys damages (non-trebled) of $15,000 for the converted timber. VanCamp contends on appeal that he may not be held liable for the trespass and conversion found to have been committed by the logger hired by VanCamp. Regardless of the logger's status as an independent contractor, VanCamp may be held liable if he "directed the trespass or such trespass was necessary to complete the contract" ( Axtell v. Kurey, 222 A.D.2d 804, 805, lv denied 88 N.Y.2d 802; see Allen v. Vuley, 223 A.D.2d 868, 869; see also Leger v. Central Hudson Gas Elec. Corp., 291 A.D.2d 603, 604; Golonka v. Plaza at Latham, 270 A.D.2d 667, 669 ["caused or directed another person to trespass"]). Here, there is evidentiary support for the jury's implicit finding that VanCamp directed the trespass ( see Axtell, 222 A.D.2d at 805-806; Whitaker v. McGee, 111 A.D.2d 459, 462). As in Axtell ( 222 A.D.2d at 805-806), "liability was properly imposed upon [VanCamp] since the credible evidence shows that he designated the area from which the trees were to be cut, going so far as to direct the logger to cut * * * trees on [the Graceys'] land rather than * * * on his own land."
There is no merit to VanCamp's assertion that, because the jury specifically found that VanCamp had "probable cause" (RPAPL 861 [a]) to believe that he owned the land from which the trees were taken, the verdict is internally inconsistent insofar as it imposes liability upon VanCamp. VanCamp fails to distinguish between the compensatory damages awarded herein for negligent trespass and conversion of timber and the treble damages otherwise recoverable, but not awarded herein, for willful, malicious, reckless, or other bad faith conduct ( see generally id.; Axtell, 222 A.D.2d at 805-806; Hollenbeck v. Genung, 198 A.D.2d 677, 678-679; Property Owners Assn. of Harbor Acres v. Ying, 137 A.D.2d 509, 510-511; Whitaker, 111 A.D.2d at 461).