LAMBERT v. FARINELLA (2009)

Appeal from a judgment of the District Court of Nassau County, First District (David Goodsell, J.), entered January 15, 2008.   The judgment, after a nonjury trial, awarded plaintiff the principal sum of $3,834.26.

Judgment affirmed without costs.

Plaintiff brought this small claims action to recover for damage done to various bushes that surrounded the decks in his backyard after defendant, a contractor, power-washed his decks and treated them with sealant.   Plaintiff testified that defendant failed to provide adequate protection for the bushes during the spraying.   Expert testimony indicated that the sealant had damaged the bushes, and that the cost to remove and replace the bushes would be $3,834.26.   Concluding that plaintiff had proved by a preponderance of the credible evidence that plaintiff's bushes had been permanently damaged, the District Court awarded judgment to plaintiff in the sum of $3,834.26.

 Where ornamental greenery is damaged, the goal of the courts is to do equity to both a defendant who has damaged another's greenery and the plaintiff, by awarding a sum which sufficiently compensates the plaintiff without unconscionably burdening the defendant (Benavie v. Baker, 72 A.D.2d 541, 542, 420 N.Y.S.2d 735 [1979] ).   The measure of damages is the lower of the replacement cost of the plants or the diminution in market value of the real property on which they grow (Fisher v. Qualico Contr. Corp., 98 N.Y.2d 534, 749 N.Y.S.2d 467, 779 N.E.2d 178 [2002];  Prashant Enters. v. State of New York, 228 A.D.2d 144, 650 N.Y.S.2d 473 [1996] ).   However, a plaintiff, having proven causation, makes out a prima facie case by providing evidence of one measure of damages (Jenkins v. Etlinger, 55 N.Y.2d 35, 39, 447 N.Y.S.2d 696, 432 N.E.2d 589 [1982] );  the availability of an alternative measure allows a defendant to prove that the plaintiff can be sufficiently compensated by a lesser amount (Fisher, 98 N.Y.2d at 539, 749 N.Y.S.2d 467, 779 N.E.2d 178).

 Plaintiff presented substantial evidence to support the District Court's finding of causation of damages, as well as evidence of the cost of replacement of the damaged shrubbery.   Although defendant presented evidence that the damage to plaintiff's shrubbery could have been somewhat ameliorated for significantly less money than the replacement cost, he failed to present evidence of the impact of the damage to the shrubs on the value of plaintiff's real property.   In this circumstance, and in light of the District Court's finding that the shrubs were permanently damaged, we cannot, given the deference owed to the determination of the District Court in small claims proceedings (see Williams v. Roper, 269 A.D.2d 125, 126, 703 N.Y.S.2d 77 [2000] ), conclude that the District Court's determination was so clearly erroneous as to deny substantial justice (see Payne v. Biglin, 2 Misc.3d 127(A), 2003 N.Y. Slip Op. 51694(U), 2003 WL 23306168 [App. Term, 9th & 10th Jud. Dists. 2003] ).   Accordingly the judgment is affirmed.