LIGO v. GEROULD (1997)

 The conduct of defendant Jeffrey W. Gerould in entering upon the property of plaintiffs without their consent and dumping compost on their porch and boathouse roof constitutes a trespass (see, Chlystun v. Kent, 185 A.D.2d 525, 526, 586 N.Y.S.2d 410;  104 N.Y.Jur.2d, Trespass, § 10).   The contention of defendants that Gerould was entitled to trespass upon plaintiffs' property because plaintiff N. Lee Ligo had previously trespassed upon defendants' property is without merit.   Plaintiffs' culpable conduct is not a defense to trespass (see, Anderson v. WHEC-TV [appeal No. 2], 92 A.D.2d 747, 461 N.Y.S.2d 607).   The further contention of defendants that Gerould was entitled to “return” the compost to plaintiffs' property because Ligo had wrongfully placed it on defendants' property (see, Rossi v. Ventresca Bros. Constr. Co., 94 Misc.2d 756, 758, 405 N.Y.S.2d 375) is without merit.   It is undisputed that the compost pile had been placed by Ligo, not on defendants' property, but on a paper street over which all parties had an easement by implication.

 County Court erred in failing to award damages to plaintiffs based upon Gerould's trespass upon plaintiffs' property.   In a nonjury case, however, this Court has the authority to grant “ ‘the judgment which upon the evidence should have been granted by the trial court’ ” and, where, “as here, the record is complete, that power extends to making an appropriate award of damages” (Karagiannis v. New York State Thruway Auth., 187 A.D.2d 1009, 1010, 590 N.Y.S.2d 970, lv. dismissed 81 N.Y.2d 835, 595 N.Y.S.2d 397, 611 N.E.2d 298;  see, Rivera v. State of New York, 205 A.D.2d 602, 603, 613 N.Y.S.2d 253;  Mesick v. State of New York, 118 A.D.2d 214, 220, 504 N.Y.S.2d 279, lv. denied 68 N.Y.2d 611, 510 N.Y.S.2d 1025, 502 N.E.2d 1007).   In the absence of proven damages, plaintiffs are entitled to nominal damages in an action for trespass (see, Kronos, Inc. v. AVX Corp., 81 N.Y.2d 90, 95, 595 N.Y.S.2d 931, 612 N.E.2d 289;  104 N.Y.Jur.2d, Trespass, § 36), and we award plaintiffs one dollar in nominal damages.

 Plaintiffs are also entitled to an award of punitive damages.   In order to recover punitive damages for trespass on real property, plaintiffs have the burden of proving that the trespasser acted with actual malice involving an intentional wrongdoing, or that such conduct amounted to a wanton, willful or reckless disregard of plaintiffs' rights (see, Chlystun v. Kent, supra, at 527, 586 N.Y.S.2d 410;  UA-Columbia Cablevision of Westchester v. Fraken Bldrs., 114 A.D.2d 448, 449, 494 N.Y.S.2d 718;  MacKennan v. Bern Realty Co., 30 A.D.2d 679, 291 N.Y.S.2d 953;  104 N.Y.Jur.2d, Trespass, § 42).   From our review of the record, we conclude that plaintiffs met their burden of proving that Gerould acted with actual malice and that his conduct amounted to a willful disregard of plaintiffs' rights.   We therefore award plaintiffs $1,500 in punitive damages.

We have considered the remaining contentions of plaintiffs and conclude that they are without merit.

Judgment unanimously modified on the law and as modified affirmed without costs.

MEMORANDUM: