The County of Orange, Plaintiff, v. CIOFFI SERVICES RSBM EXCAVATING LLC RSBM MANAGEMENT LLC AND WALTER SONS TREE SERVICE MANGIN LLC SHERI TORAH INC FORT WORTH HOLDINGS LLC CLEAN CUT INC VIKING LAND WORKS INC THE VILLAGE OF SOUTH BLOOMING GROVE (2026)

The following papers filed electronically were read and considered in connection with the motions by Plaintiff The County of Orange (Mot. Seq. #4), Defendants RSBM Excavating, LLC and RSBM Management, LLC (Mot. Seq. #5), Defendants Sheri Torah, Inc. and Fort Worth Holdings, LLC (Mot. Seq. #6), Defendant Mangin LLC (Mot. Seq. #7), Defendant Cioffi 1, Inc. d/b/a Cioffi Services (Mot. Seq. #8), and Defendant/Respondent Village of South Blooming Grove (Mot. Seq. #9) each for an Order pursuant to CPLR § 3212 granting summary judgment and dismissing all claims, counterclaims and crossclaims asserted against them:

Motion #4:

Notice of Motion, Affirmation in Support, Exhibits 1-29,

Affidavits in Support, Statement of Material Facts,

Memorandum of Law Doc. 147-181

Affirmation in Opposition, Exhibits A-K,

Statement of Material Facts, Memorandum of Law Doc. 271-284  ¹

Reply Affirmation Doc. 300

Motion #5:

Notice of Motion, Affirmation in Support, Exhibits A-E,

Statement of Material Facts Doc. 185-192

Affirmation in Opposition, Exhibits 1-4, Responses to

Statements of Material Facts, Memorandum of Law Doc. 236-243

Reply Affirmation, Exhibit A-C Doc. 296-299

Motion #6:

Notice of Motion, Affirmations in Support,

Memorandum of Law Doc. 193-196

Affirmation in Opposition, Exhibits 1-4, Responses to

Statements of Material Facts, Memorandum of Law Doc. 244-251

Reply Affirmation Doc. 285

Motion #7:

Notice of Motion, Affirmation in Support, Exhibits 1-7

Statement of Material Facts

Memorandum of Law Doc. 197-208

Affirmation in Opposition, Exhibits 1-4, Responses to

Statements of Material Facts, Memorandum of Law Doc. 252-259

Reply Affirmation, Exhibit 1 Doc.304-305

Motion #8

Notice of Motion, Affirmation in Support,

Exhibits A-E, Memorandum of Law Doc. 209-215

Affirmation in Opposition, Exhibits 1-4, Responses to

Statements of Material Facts, Memorandum of Law Doc. 260-267

Affirmation in Reply Doc. 302-303  ²

Motion #9:

Notice of Cross-Motion, Affirmation in Support,

Exhibits A-K, Statement of Material Facts,

Memorandum of Law Doc. 270-284

Affirmation in Opposition Doc. 301

Reply Affirmation Doc. 306

Procedural History

The instant action by Plaintiff The County of Orange (the "County") relates to Defendants' alleged unauthorized cutting and removal of timber and grading in County-owned parkland while constructing an unauthorized and illegal roadway through the park. The underlying factual background is set forth in this Court's Decision and Order dated March 18, 2025 and is incorporated by reference herein. The County asserts claims of Trespass; Conversion; violations of New York Real Property Action and Proceeding Law (RPAPL); Orange County Law, State Environmental Quality Review Act (SEQRA), and New York General Municipal Law (GML) relating to the construction of the road known as the Mangin Road Bypass (the "Mangin Bypass").

The County commenced this action on January 17, 2023, with the filing of a Summons and Verified Complaint against Defendants Cioffi 1, Inc. d/b/a Cioffi Services ("Cioffi"), RSBM Excavating, LLC, RSBM Management, LLC (collectively, "RSBM"), and the Village of South Blooming Grove ("Village"). The Complaint asserted nine causes of action. The First Cause of Action is asserted against Cioffi and RSBM for trespass; the Second Cause of Action is asserted against the Village for trespass; the Third Cause of Action is asserted against all Defendants for statutory liability pursuant to RPAPL § 861for the unauthorized cutting, removal, and destruction of trees simultaneous with the trespass on Gonzaga Park; the Fourth Cause of Action is asserted against all Defendants for conversion of excavated soil, uncovered rock, severed trees, timber and underwood; the Fifth Cause of Action is asserted against all Defendants for violations of Sections 4(a),(b),(c),(1),(n),(r) of Orange County Local Law 13 of 2001; the Sixth Cause of Action is alleged against Defendant Village for violations of SEQRA; the Seventh Cause of Action is asserted against Defendant Village for violation of GML; the Eighth Cause of Action seeks declaratory judgment against all Defendants concerning Plaintiff's ownership of the park and Defendants' unauthorized entry upon the park to cut, remove, injure and destroy underwood, timber and trees thereon, as well as Defendant Village's failure to perform mandatory environmental procedure and reviews pursuant to SEQRA or to refer its proposal for the Project to the County of Orange Planning Department pursuant to GML §§ 239-1, -m; the Ninth Cause of Action seeks a preliminary and permanent injunction against all Defendants from further trespassing, cutting, removing, injuring and destroying of underwood, timber and trees and grading and construction of an unauthorized roadway in and through the Park.³

Thereafter, the County filed an Amended Summons and Complaint on February 27, 2023, adding Defendant Walter & Sons Tree Services, Inc. ("Walter"). The Amended Summons and Complaint asserted eight causes of action identical to the first eight causes of action asserted in the Complaint with the inclusion of Defendant Walter. All named Defendants appeared through counsel and interposed Answers to the Amended Complaint.

On July 15, 2024, the County and Defendants Cioffi, RSBM, Village and Walter entered into a Stipulation to amend the Summons and Complaint to add as Defendants Mangin, LLC ("Mangin"), Sheri Torah, Inc. ("Sheri Torah"), Fort Worth Holdings LLC ("Fort Worth"), Clean Cut, Inc. ("Clean Cut") and Viking Land Works, Inc. ("Viking").

The County filed a Second Amended Summons and Complaint ("SAC") on July 17, 2024, adding Mangin, Sheri Torah, Fort Worth, Clean Cut and Viking as Defendants. The SAC asserted nine causes of action, the first eight of which are identical to those asserted in the Amended Complaint with the inclusion of Defendants Mangin, Sheri Torah, Fort Worth, Clean Cut and Viking.⁴ Defendants Sheri Torah and Fort Worth joined issue with an Answer filed on September 6, 2024. Defendant Mangin filed its Answer on December 9, 2024. By Decision and Order dated November 25, 2024 (Goldberg-Velazquez, J.) this Court granted a default against Defendants Clean Cut and Viking.

Discovery has been completed and the Note of Issue was filed on September 5, 2025. Pursuant to the Court's directive, summary judgment motions were timely filed by all parties. The County moves for partial summary judgment against the Village on the issue of liability only and in opposition, the Village cross-moves for summary judgment dismissing all claims against it. Defendants RSBM, Sheri Torah/Fort Worth Holdings, Mangin, and Cioffi each also move for an Order granting summary judgment and dismissing the County's claims and all crossclaims, and the County opposes each motion.

Facts Relevant to Motions

The County is the owner of parkland property, deeded to it by the State of New York on January 14, 2003, situated in the Village of South Blooming Grove, Town of Blooming Grove, Village and Town of Woodbury and Town of Monroe, all in the County of Orange, State of New York (the respective Tax Maps identified as Section 222, Block 1, Lot 1; Section 213, Block 1, Lot 72; and Section 1, Block 1, Lot 5) (hereinafter "Gonzaga Park"). Approximately two hundred and sixteen acres of Gonzaga Park is situated in the Village of South Blooming Grove, and according to the County, consists primarily of pristine virgin forest and numerous hiking trails, including access to the Long Path, a hiking trail operated and maintained by the New York/New Jersey Trail Conference. According to the New York Department of Environmental Conservation ("NYDEC"), Gonzaga Park is home to the significant designated habitat community of Pitch Pine-Oak-Heath Rocky Summit and is populated by the following endangered or threatened species: Timber Rattlesnake, Indiana Bat, Northern Long-Eared Bat, Glaucous Sedge and Green Rock Cress. The parcels directly adjacent to Gonzaga Park on its western boundary are owned by Fort Worth and Mangin. Mangin is the owner of an eighty-acre parcel in the Village located immediately northwest of Gonzaga Park. Sheri Torah operates a school on the parcel owned by Fort Worth located immediately adjacent to the western boundary of Gonzaga Park.

According to the testimonial and documentary evidence before the Court, including correspondence and testimony by and among the Village and all Defendants, as early as January 2021 the Village and local developer Simon Gelb ("Gelb"), were in discussions regarding a "bypass" road to make it easier and safer for the Village's resident to travel between the Village and the Village of Kiryas Joel ("Kiryas Joel"), as well as make it easier to access the proposed six-hundred-unit Clovewood development located a few miles to the north of Gonzaga Park, at the time a project being developed by Gelb. According to the Village's resolutions and public announcements, the Mangin Bypass was intended to connect Mangin Road to Seven Springs Mountain Road (also known as County Route 44), which would traverse an eighty-acre parcel owned by Mangin and, as the County alleges, a portion of the County's Gonzaga Park. According to correspondence by and among the Village and Defendants, including Joel Stern ("Stern") the Confidential Assistant to the Village Mayor and Isaac (Yitzchok) Eckstein ("Eckstein") the Legislative Aid to the Village Mayor, over the years the Village received numerous requests from its residents to address life and safety issues at the County Route 44 intersection. The Village began to explore the Mangin Bypass when the concept was proposed in the traffic study contained in the Environmental Impact Statement for the Clovewood development project that was pending before the Village and Orange County in 2020-2021.

There is undisputed evidence, including the testimony of Village officials, Village records, and email correspondence by Stern and Eckstein, that in 2022 the Mangin Bypass was a priority for the Village. It is also undisputed that, as early as 2021, the Village was fully aware that the Mangin Bypass would necessarily have to traverse real property owned by Mangin and the County. As demonstrated by an email dated January 3, 2021 between Gelb and Village officials, as well as by the testimony of Stern and Eckstein, it was understood the Mangin Bypass would necessarily traverse Gonzaga Park property, requiring municipal approval. Sigificantly, according to Eckstein, based upon meetings with both County and State officials in 2021 and 2022, the Village was fully aware of the legal impediments the Mangin Bypass traversing dedicated public parkland in Gonzaga Park, including the public alienation and reversion clause associated with the property deed to the park. It is also undisputed the Village never received written approval, permission or authority by either the State and/or the County to construct the roadway in Gonzaga Park.

Stern testified that shortly after receiving the January 3, 2021 email from Gelb, he contacted Orange County Legislature Chairwoman Katie Bonelli to schedule a meeting to discuss the Mangin Bypass and its need to traverse Gonzaga Park. According to Stern, during 2021 and 2022 he and the Village had ongoing contact with the County and Chairwoman Bonelli seeking the County's approval to allow the Mangin Bypass to traverse Gonzaga Park. Stern testified Chairwoman Bonelli and the County were in favor of the Mangin Bypass. Stern also contacted the Village's State representatives about getting the State on board with the Mangin Bypass and the lifesaving benefits this alternate travel route would provide for the community and their constituents. According to Stern, all municipal personnel were in support of the project.

According to Stern's testimony, during the Summer and Fall of 2022 Stern had ongoing communication and meetings with the County Executive on the status of the Mangin Bypass, including a meeting on October 7, 2022, during which Stern provided the County Executive with a binder and photos of the progress of the project. On October 12, 2022, the parties agreed to a meeting at the Mangin Bypass at the border between the Mangin property and Gonzaga Park to discuss and review the proposed roadway impacting Gonzaga Park. At that meeting, the Village was represented by Stern and Eckstein, and the County was represented by County Attorney Richard Golden, County Executive Steven Neuhaus and then Deputy Commissioner of Department of Public Works Travis Ewald. During the meeting the parties discussed the legislative process required for the Mangin Bypass project, including the need to obtain approvals from various legislative bodies. According to Eckstein, the County officials explained to him and Stern that any project involving County park property alienation would require a three-quarters vote from the County legislature and approval from the state legislature. The multiple hurdles, including alienation of park land and deed restrictions before such a road could even be considered, were discussed. Eckstein acknowledged the Village's understanding of these legal impediments to alienate and traverse into Gonzaga Park. Eckstein testified he contacted Chairwoman Bonelli and the New York State Legislators regarding public alienation for the area within Gonzaga Park. The record also reflects ongoing communication between the Village and the County after the October 12th meeting, including WhatsApp communications between Stern and the County Executive, regarding the Mangin Bypass.

According to the County, during the parties' on-site meeting on October 12, 2022, the County officials observed roadway grading, blasting and cutting of timber that was visible and had been performed up to that juncture that they thought was outside of the Gonzaga Park property boundaries. According to County Executive Neuhaus's testimony, the Village said, "we've reach[ed] (sic) as far we could on our private property, but we need to connect this to the main road, but we'd have to go through the park to get there...". County Executive Neuhaus also testified he "didn't believe that they (the Village) were on the County property at all and thought that they were saying this is how much, we've gone this far, but we cannot go any further".

According to Stern and Eckstein, despite the Village's full understanding of municipal approvals and other "legal impediments" required to traverse Gonzaga Park, following the October 22, 2022 meeting the Village believed the County had given the Mangin Bypass project a "green light". The Village has put forth no evidence that either the County or the State gave written approval to construct the Mangin Bypass, including any approvals towards alienation or traversing Gonzaga Park.

According to the testimony of both Stern and Eckstein, in 2022 the Village actively engaged in meetings with private landowners Mangin and Fort Worth (and Sheri Torah, the tenant to the property owned by Fort Worth) about restoring what the Village asserted was an "abandoned road" along the Mangin Bypass for the health and safety of their community and to discuss they take part in "their fair share" of the costs to restore the road. According to Stern, the Village coordinated the creation of the Mangin Bypass road with both Mangin and Sheri Torah. Based upon testimony and Village records, including Village email correspondence and resolutions, the actions of both Stern and Eckstein were taken in furtherance of the Mangin Bypass and were done in their official capacities on behalf of the Village.

Despite the Village's attempts to disclaim any responsibility for any alleged trespass or incursion onto Gonzaga Park by the Village or any of their Co-Defendants, there is overwhelming evidence establishing that in the Summer of 2022 the Village caused and contributed to the construction of the Mangin Bypass, by directing the actions of the other Defendants, including Cioffi, without the required municipal approvals. The following further highlights the Village's extensive efforts to orchestrate, cause and contribute to the unlawful activity in Gonzaga Park, without the required and known municipal approvals from the State and the County:

• The January 3, 2021 email between Gelb and Village officials included tax map attachments that establish the Village was fully aware the Mangin Bypass would have to traverse Gonzaga Park, and the email itself addressed the Village's coordination of the private landowners through which the roadway would traverse, including offering Sheri Torah quid pro quo to expedite its application to operate the school in exchange for having the Mangin Bypass run along its property line;

• Cell phone video recorded in August 2022 depicts Stern directing Cioffi, a contractor who also serves as the Village's department of public works supervisor, to begin work on a road at the end of Mangin Road, with the following transcribed audio recording: "Good afternoon fellows I am standing here at the Mangin Entrance with Moshe, our lovely fence guy, he is going to start tomorrow morning; the center point of the two swinging gates is going to be two ten foot doors, there will be a total of twenty feet construction entrance, it's going to be over here at this line which will align within the center of the road over here, then there is going to be another twenty feet in that direction and in that direction for privacy now. I think the first thing tomorrow is to bring in heavy equipment to really knock this out both to align this road instead of it going this way it should start going this way and the grading as well. So yep, see you in the morning he's going to be here at 7:30.";

• Stern and the Village acknowledge coordinating the creation of the Mangin Bypass with owners of the adjacent properties, Mangin and Fort Worth (through tenant Sheri Torah), but claim Stern was acting in his capacity as a "community member" and not on behalf of the Village, when he discussed the proposed bypass road with representatives of Mangin and Sheri Torah  ⁵ ;

• Stern does not dispute that he visited the site of the road construction on the Mangin property in the immediate vicinity of Gonzaga Park, to direct a contractor to begin working on the road project at the termination of Mangin Road (and entrance to Mangin's parcel) but described his (and the Village's) activity as mere "facilitation" and "making sure all parties that were involved, that actually stuff takes place."

• There exist invoices from Cioffi dated August 2022 which note the project as "Mangin Bypass" indicating that road grading work had commenced in or about August 2022, yet Cioffi testified that the trees were already cut down for the entire length of the road by the time he started his work, inferring that the cutting of trees in the park happened at some time during or prior to the summer of 2022;

• Eckstein testified that the Village arranged for a response to the State Department of Environmental Conservation's "Notice of Violation/Cease and Desist Directive" issued to Mangin concerning construction activity at Mangin Road/Gonzaga Park;

• By email dated December 13, 2022, Stern advised the Village Board of the urgent need for the Mangin Bypass road due to a perceived "life safety issue" at the intersection of County Route 44 and State Route 208 ("Route 44 intersection"). Stern, speaking on behalf of the Village, explained "We [the Village] have looked extensively into many options, some more practical than others, and we [the Village] have come up with a tangible and efficient solution . . . . Enter the Mangin Bypass Project!" Significantly, Stern asked the Board to pass three resolutions: (i) authorizing the Mayor to enter into a contract with Cioffi to clean up and pave the abandoned section of the Mangin Bypass roadway (also referred to as Mangin Road to Seven Springs Road); (ii) authorizing the Mayor to reopen the Mangin Bypass road to its original length all the way through Seven Springs Road; and (iii) authorizing the Mayor to amend the seasonal road maintenance schedules to add the Mangin Road bypass;

• Later that evening at the Board meeting on December 13, 2022, the Village Board passed resolution No. 153 approving the "Mangin Bypass Road" and authorizing the Mayor to perform all actions required "to reopen Mangin Road to Seven Springs Road";

• By email dated December 15, 2022 from Stern to Jacob Adler of the New York State Governor's Office, the Village explained the life and safety hazards the intersection of County Route 44 and State Route 208 posed to its residents, expressing the urgency of the "Mangin Bypass Project" and the need to traverse Gonzaga Park;

• According to testimony of the Sheri Torah school administrator Moshe Ostreicher ("Ostreicher"), Stern told him the Village was going to "create a road" adjacent to the parcel owned by Fort Worth called the Mangin Bypass and expressed the life and safety issues to the Village residents traveling to and from Kiryas Joel.

• Ostreicher testified that Stern advised him the proposed road would not traverse the Fort Worth/Sheri Torah parcel and that he understood the proposal by Stern was being made on behalf of the Village.

• Despite his understanding the road would not traverse the Sheri Torah property, Ostreicher testified Stern and the Village directed them to hire Cioffi to conduct the road grading and pay for its share of the work, and Cioffi invoiced Sheri Torah for its work;

• Ostreicher testified that, "At that time we purchased a piece of land, so [Joel] Stern approached us that it would be very helpful for you that we are going to create a new road behind you . . . So he told us that there is going to be a project and you, as someone who is going to have the benefit out of it, you need to pay some of it..."

• In December 2022, when Sheri Torah complained to Stern about the excessive invoicing by Cioffi, Stern and the Village arranged for a fixed price for Cioffi's work;

• A survey  ⁶ dated December 29, 2022, shows a "proposed 60' wide Roadway" over Gonzaga Park.

In December 2022, based upon a complaint of potential trespass into Gonzaga Park, County Surveyor Thomas Barry, L.S. ("Barry"), a New York State licensed surveyor and employee of the County's Department of Public Works (DPW), undertook an extensive investigation into the location of the cutting of trees and road grading to determine if the incursion extended onto County property. According to Barry, he used the County's Global Positioning Equipment to gather data on the area and extent of the incursion and evaluated it against the property boundaries set forth in the deed for Gonzaga Park from the State to the County. To make a definitive assessment, Barry made two site visits to Gonzaga Park in December 2022 with his survey crew to conduct further field work, including locating additional monuments (iron rods, pipes and concrete monuments) located along the southerly and northeastern sides of the park and on the adjoining property. Barry also testified he used survey data point information from an investigation into an unrelated incursion into the park in the Spring of 2022. The survey data points from his April 13 and May 10, 2022 visits to the park (to assess the unrelated incursion) were used to establish the park boundaries. In addition, Barry reviewed the legal description of the adjoining parcels.

Barry states the boundary lines of Gonzaga Park were established based on such data, as well as a survey dated November 15, 1989 performed by Frank M. Hoens. Barry utilized this data to create the map titled "Boundary in Areas of Encroachment at Gonzaga Park." Based on the plotted area of the park that was cleared of trees, timber underwood and graded (for apparent road construction work) starting in the northwest area of the park and proceeding through the park property in a southerly direction, Barry calculated the cleared area as 1.45 acres.

In his affidavit, Barry attests, with a reasonable degree of surveying certainty, that the disturbed area/clearing lies substantially beyond the western property line between Gonzaga Park and the adjoining parcel owned by Fort Worth. Barry states the cleared area extends at points nearly two hundred feet into the park, which is owned by the County.

Upon learning of the incursion onto Gonzaga Park, the County's Commissioner of Department of Parks, Recreation and Conservation Travis Ewald, P.E. ("Ewald"), also undertook an investigation to determine the extent of damage to Gonzaga Park. Ewald testifies to the County's use of "Nearmap" aerial photographs of Gonzaga Park dated April 13, 2022 and September 21, 2022 to demonstrate the significant clearing and destruction of underwood and trees located in and around Gonzaga Park that the County alleges took place between April and late September 2022. The property boundaries for Gonzaga Park and adjacent parcels are depicted on the Nearmap photographs.⁷ In December, 2022, Ewald also visited the site and viewed the damage to Gonzaga Park, where he observed that someone (or some entity) had staked out the property at some point between October 13, 2022 and December 2022, as there were property line markers located at the site clearly delineating the property lines between Gonzaga Park and the adjacent parcel to the west of the park. According to Ewald, notwithstanding the clear delineation of the property line, contractors entered the County's property and cut and removed massive amounts of timber and trees and began grading and constructing a roadway on the County's property. Ewald observed it was evident that the person or entities performing such work on County property excavated and removed soil, rock and severed trees, timber and underwood to some off-site location.

Despite this activity by the Village to initiate, coordinate and implement the construction of the Mangin Bypass, there is no record of the Village or any other Defendant preparing or submitting any surveys, engineering, construction plans, environmental studies or other required filings with any State, County or local agencies in furtherance of the Project. The only evidence as to surveying and environmental studies related to the Mangin Bypass offered by the Village are traffic studies conducted by Gelb in support of his Clovewood development.

The Motions

The County's Motion for Partial Summary Judgment on Liability (Mot. Seq. # 4)

The County's moving papers seek summary judgment against the Village as to liability on all causes of action, contending there is overwhelming evidence that the Village knowingly and intentionally caused and contributed to the incursion and destruction of virgin forest parkland in Gonzaga Park and blatantly disregarded all applicable, state, county and local laws and statutes to construct the Mangin Bypass roadway. The County argues the Village - without first obtaining the known required municipal approvals and permits - orchestrated and directed the Co-Defendants to illegally enter upon Gonzaga Park to construct the Mangin Bypass roadway and contends the Village is legally responsible for the trespass and illegal incursion onto Gonzaga Park and the performance of road grading resulting in the destruction of hundreds of trees and other forestry.

Based upon the testimony and correspondence by and among the Village and Co-Defendants, as well as the public minutes and resolutions issued by the Village, the County contends the Village concedes it is squarely behind the actions of the Co-Defendants' unauthorized incursion onto Gonzaga Park. The County argues the undisputed evidence demonstrates the Village was fully aware that its proposed Mangin Bypass, a roadway designed to connect the Village with Kiryas Joel, would have to traverse Gonzaga Park and would require County and State approvals, including legislative approvals for alienation of public parkland as well as a right of reversion interest to the State as set forth in the deed.

The County contends that, despite these known legal impediments and required approvals, in the summer of 2022 the Village caused and directed the Co-Defendants, including Cioffi, to proceed with constructing and clearing the roadway through Gonzaga Park. The County asks the Court to dismiss the Village's contention the work done at Gonzaga Park, including the cutting of trees and grading for more than an acre into the park, was at the behest of unknown contractors, particularly where there is video evidence showing Stern directing the work, a position the County argues does not pass the "straight face test" and cannot defeat summary judgment.

The County offers the affidavits of Ewald, the County's Commissioner of Parks, Recreation and Conservation and Barry, a licensed surveyor and employee of the County's DPW, who testify as to the trespass and incursion onto Gonzaga Park and describe substantial cutting, removal, and destruction of timber and road grading discovered in December 2022. Ewald notes the roadway was located at the exact site where the Village had proposed the bypass roadway when he and other County officials met with Village officials on October 12, 2022 and specifically discussed that the bypass road could only proceed with State and County Legislative approval. Ewald testified that during the October 12th meeting, the parties observed work being done on the bypass road but the County was assured by the Village the construction was not on their property. Ewald further testifies as part of his investigation he logged into the County's "Nearmap" online mapping account to view historical aerial photographs of Gonzaga Park to conduct a comparison to the park area before the summer of 2022 when the road construction commenced. Barry also testified to the incursion and trespass into Gonzaga Park, specifically that he undertook an investigation that revealed approximately 1.45 acres of pristine forestry and trees in Gonzaga Park were cut down and cleared along its western border with the Mangin property, along the Village's proposed Mangin Bypass roadway.

The County further argues the Court should reject any argument by the Village that during their on-site meeting with the County Executive on October 12, 2022 (months after the alleged incursion activity) the Village was given a "green light" to move forward with the Mangin Bypass, in the face of undisputed known legal impediments that had not been approved or even applied for in the summer of 2022.

As to its claims of trespass and violations of RPAPL § 861, the County argues the evidence overwhelmingly demonstrates the Village was responsible for causing and contributing to the Co-Defendants' illegal incursion onto the park and unlawful cutting, removal, and destruction of timber and road grading. The County argues it is not necessary that the Village officials actually trespassed on the County Park, as long as there is evidence the Village promoted, aided and abetted, or otherwise caused the intrusion by a third-party. In addition, the County points out the Village officials acknowledged they were unaware of the precise boundary between Gonzaga Park and the Fort Worth/Sheri Torah property, to which the County responds that mistake is not a defense to a trespass claim.

The County argues the undisputed actions by the Village to coordinate, cause, and direct the Co-Defendants to illegally enter Gonzaga Park and unlawfully cut trees and excavate truckloads of earth and rock, without the required approval of both the County and State, established as a matter of law its trespass claims against the Village, under both Orange County Local Law 13 (Local Law 13) and common law trespass. The County further contends there is undeniable evidence that, upon their incursion onto Gonzaga Park, the Village's actions of exercise of control over the trees that were unquestionably removed from the Park establishes a conversion cause of action as a matter of law.

The County further argues these actions by the Village, taken in furtherance of its planned and executed Mangin Bypass roadway had a significant impact on the environment, triggering the requirement of a SEQRA review by all state and local governments and agencies/departments to consider environmental impacts equally with social and economic factors, prior to any action, none of which were followed by the Village. Likewise, the County argues the Village's actions were taken in furtherance of a municipal project requiring compliance with GML §§ 239-l and 239-m, including a referral to the County's planning agency for review including, inter alia, approval of site plans or the issuance of site plans prior to any local action being taken, particularly where County-owned property was involved. The County contends that, similar to its disregard of SEQRA, the Village also did not obtain any review or approval under the GML prior to the construction of the Mangin Bypass.

The Village's Opposition

The Village argues the County's motion should be denied based upon the County's failure to demonstrate prima facie entitlement to summary judgment. The Village contends that after extensive and protracted discovery in this litigation, the County has failed to identify a "single connection" between the cutting of trees in Gonzaga Park and the Village or any of its Co-Defendants. The Village argues the County does not have a single witness or admissible document that supports its claim the Village created the disturbed area or cut any trees in Gonzaga Park. To the contrary, the Village argues there is sworn and undisputed testimony that the alleged disturbed area had been in existence since prior to 2019, having been utilized as a tractor trailer turnaround. The Village further contends the County does not have a single witness or admissible document that proves what the disturbed area looked like prior to 2022.

The Village avers the record put forth by the County creates more questions than answers. The Village states the County relies heavily on the 2025 survey created by Barry, despite his admitting to inconsistencies and errors in the survey. The Village also challenges the County's reliance on the Nearmap photographs as proof of the alleged disturbance, contending they are business records of a non-party photography company that have never been authenticated by any witness. Further, the Village challenges the County's use of tax map overlays onto the Nearmap photographs as an attempt to present them as definitive proof of the location of the disturbed area in relation to the County property line, without any testimony as to the accuracy of the placement of the overlays. The Village argues that, accordingly, there remain issues of fact as to where the County boundary line is, and whether or not the County owns the alleged disturbed area. The Village argues there is also conflicting testimony as to where the boundary line is and whether the area had in fact been cleared on prior occasions by AT&T in conformance with its rights under an easement.⁸ The Village contends there is testimony from multiple witnesses that the alleged disturbance to Gonzaga Park had existed for years prior to 2022 and there is a lack of evidence from the County as to what the disturbed area looked like prior to 2022. As such, the Village argues the County is not entitled to judgment as a matter of law on its trespass claims or RPAPL § 861 claim.

The Village further contends there is no evidence in this record to support the County's trespass and RPAPL claims that the Village, or anyone on its behalf, intentionally entered into Gonzaga Park and cut or removed trees. According to the Village, there are no contracts, agreements, invoices, or proof of payment by the Village for the cutting of trees on County property.

As to the trespass claims, the Village adopts the arguments set forth in RSBM's motion for summary judgment against the County, discussed infra herein, arguing there can be no claim of common law trespass on public land. As to the statutory claims of trespass under Local Law 13, the Village argues the County has failed to establish an intentional entry onto the land by the Village or any other Co-Defendants without justification or permission.

The Village further argues the County engaged in pattern of evasion in discovery, by failing to initially disclose any of the documents exchanged with the Village prior to December 2022, including records related to the parties' site visit in October 2022 and WhatsApp messages exchanged with the Village, wherein the Village claims the County gave its express approval and support for the project. Finally, the Village raises the credibility of the County witnesses as being fatal to summary judgment, alleging the County Executive, County Attorney and Deputy Commissioner of DPW failed to disclose to other County officials their prior personal knowledge and involvement with the project at the time of its discovery in December 2022.

As to the County's conversion claim, the Village argues it must be dismissed based upon the lack of proof the Village exercised unauthorized dominion over such property. The Village argues conversion is an intentional tort that occurs when someone intentionally takes control of another person's property without authority. Here, the Village argues all Defendants have given sworn testimony that they did not cut or remove trees or material from any County property, which alone warrants dismissal of the County's conversion claim.

In regard to the County's SEQRA and GML claims, the Village argues both claims must be dismissed because the Village took no action in furtherance of the Mangin Bypass to trigger compliance with SEQRA or GML. The Village concedes it never submitted a site plan, applied for any special use permits or zoning variance, requested a review under SEQRA, or made a request to the County for a GML referral, because the Village contends it took no actions in furtherance of the Mangin Bypass to warrant compliance with these municipal requirements. The Village further argues, even if the Village or its boards issued any SEQRA determinations, the County must commence an Article 78 proceeding that seeks to nullify an agency decision, rather than to make a claim within its complaint in this action.

The Village's Cross-Motion for Summary Judgment (Mot. Seq. #9)

In conjunction with its opposition to the County's motion for partial summary judgment, the Village also cross-moves for summary judgment, seeking dismissal of all claims asserted against it on the grounds there is no evidence to support the County's claims the Village created the disturbed area or cut any trees on the County's property. Further, the Village argues the County offers no admissible evidence to establish what the disturbed area looked like prior to 2022, to determine if a trespass or incursion took place on Gonzaga Park property. Similar to its opposition to the County's motion, the Village's cross motion challenges the reliability of the evidence the County relies upon to establish the alleged incursion and disturbance in Gonzaga Park, again raising alleged deficiencies in the 2025 survey created and relied upon by the County's surveyor, and the County's reliance on the Nearmap photographs as business records without an authenticating witness.

As in its opposition to the County's common law trespass claims, the Village reiterates the arguments made by RSBM that there is no such cause of action available to the County since Gonzaga Park is public land and there can be no claim for common law trespass onto public land. In addition, the Village argues dismissal of all trespass claims is warranted because there is also no evidence that the Village or anyone on its behalf knowingly or intentionally entered into Gonzaga Park.

The Village also again adopts the argument advanced by RSBM in its motion concerning the County's claim of trespass in violation of Local Law 13, reiterating that a violation of Local Law 13 does not give rise to a civil action any Defendant in this matter because Local Law 13 calls for penalties in the manner of fines, and cannot serve as a basis for a cause of action in this civil litigation.

The Village's cross- motion also argues the County's inability to establish the Village or the Co-Defendants created any incursion or disturbance in Gonzaga Park is fatal to the County's trespass and RPAPL § 861 claims. The Village contends there is no evidence that it or any Co-Defendants intentionally entered Gonzaga Park and cut or removed trees, warranting dismissal of the trespass and RPAPL claims. Similarly, as to the conversion claim, the Village argues the County's inability to definitively place the Village or the Co-Defendants in Gonzaga Park in order to exercise dominion and control over the cut wood requires dismissal of this claim.

The Village also seeks dismissal of the County's SEQRA claim by restating that the County failed to establish the Village filed any applications for construction of a roadway with any municipality to be subject to SEQRA requirements, such that SEQRA was never triggered. The Village repeats it has taken no action in constructing the roadway and therefore, there was no legal basis or requirement to request any SEQRA determinations. The Village further reiterates that, in order to pursue an objection under SEQRA, the County would have had to commence an Article 78 proceeding seeking to nullify an agency decision.

As to the County's GML § 239-m claim, the Village again posits this claim fails for the same reasons as the SEQRA cause of action — that its inactivity towards the Mangin Bypass did not trigger the need for compliance with either SEQRA or GML and as such, these claims should be dismissed as a matter of law.

The County's Reply/Opposition to the Village's Cross-Motion:

The County combines its Reply to its motion for partial summary judgment on liability with its opposition to the Village's motion for summary judgment. Therein, the County argues the Village essentially contends that (i) the County implicitly approved the Mangin Bypass road, and (ii) an "abandoned road" was already present in Gonzaga Park. The County argues these contentions are demonstrably untrue and, in any event, are of no legal consequence. The County points out the Village's position that the informal approval by the County constituted permission to the Village for the Mangin Bypass is contrary to the assertions by Stern that the Village had no connection with the Mangin Bypass road work performed in Gonzaga Park. The County argues regardless of the fallacy of the Village's position that the alleged expressed support of the Mangin Bypass by the Legislative Chairwomen or the County Executive constituted permission to trespass into Gonzaga Park, such support is legally irrelevant, because only a duly passed act of the New York State Legislature can authorize such a road. The County further argues the notion that the Village believed the County had given the project a "green light" defies logic, as any rational government official would understand that a road could not be built through a public park without securing the formal approval of the County and State legislature.

The County disputes the Village and Stern's characterization of the "abandoned road" that they would be cleaning up, contending it was actually a hiking trail, five to six feet in width, as depicted in the August 2022 video. The County further challenges Stern's claims that "the area disturbed had been in that condition for years" noting Stern offers no explanation why it was necessary for him to direct a contractor to "bring in heavy equipment" (such as excavators, road graders, and tree cutters), as Stern is seen doing in an August 2022 video. The County references the testimony of Eckstein that there was only a "trail" in Gonzaga Park, not a road, and refers the Court to the pictures previously offered in support of the prior application for a preliminary injunction that the County argues clearly depict a hiking trail rather than an abandoned road as claimed by the Village. The County argues the Court is not "required to shut its eyes to the patent falsity of a claim." Finally, the County argues the Nearmap photographs are admissible into evidence and, when taken together with the testimony of Ewald and Barry, support the County's claims of illegal trespass and incursion into Gonzaga Park.

Finally, the County argues it is noteworthy that, in addition to failing to include an affidavit from Stern or Eckstein detailing the Village's specific involvement in the Mangin Bypass road, the Village also failed to have a survey conducted of the intrusion into Gonzaga Park as was its procedural right under the CPLR § 3120(1)(i).

The Village's Reply

In reply, the Village argues the County's opposition misses the primary point of its cross motion, restating its position the County has no proof as to who, if anyone, trespassed on their property and cut trees. The Village characterizes the County's witnesses as disingenuous in their claims of discovery of the disturbed area when they were at the site visit two months prior. The Village also maintains the County ignored the sworn testimony of Stern and two other witnesses that this area had been disturbed for years and also failed to acknowledge that no County witness had ever been to the allegedly disturbed area prior to December 2022 and therefore, was unable to describe the condition of the area prior to that time. Regarding the Stern video, the Village claims the County fails to acknowledge the video was made at the portion of the Mangin Bypass roadway that leads into the Mangin property, and not anywhere near Gonzaga Park.

The Village further argues the County's opposition attempts to gloss over the inadmissibility of the Nearmap photographs by citing case law that does not support the proffered argument that the photographs are admissible as business records or public records as an exception to hearsay. The Village argues the photographs are hearsay and thus inadmissible to prove the issues relating to the location of the boundary line of the park and the disturbed area. The Village again attacks the testimony and findings of Barry, including his mapping overlays, arguing they are unreliable and should not be considered by the Court.

Finally, the Village contends the Court should discount the County's argument that the Village's failure to submit affirmations from Stern or Eckstein in support of the motion warrants denial. The Village posits this argument by the County ignores the existence of more than three hundred pages of sworn deposition testimony of these two individuals in which they testified that the Village did not perform any work on the disturbed area, did not hire or contract with any individual or company to perform work in the disturbed area, and did not pay any individual or company to perform work on the disturbed area.

Summary Judgment Standard of Review

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any triable issues of fact. Chavez v. Morales, 232 AD3d 757, 759 (2d Dept. 2024), (citing Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]). If the movant makes such a prima facie showing, the burden shifts to the non-moving party to demonstrate the existence of an issue of fact requiring a trial. Zuckerman v. City of New York, 49 NY2d 557, 562 (1980); Phillip v. D & D Carting Co., Inc., 136 AD3d 18, 22 (2d Dept. 2015). The party opposing the motion for summary judgment, "must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim or must demonstrate acceptable excuse for his failure to meet the requirement of tender in admissible form; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient. Zuckerman v. City of New York, supra, 49 NY2d at 562.

On a motion for summary judgment, the court must consider all of the facts in the light most favorable to the non-moving party and afford that party the benefit of every favorable inference. Wilson v. Rye Family Realty, LLC, 218 AD2d 836, 838 (2d Dept. 2023). A motion for summary judgment should not be granted where the facts are in dispute, or where conflicting inferences may be drawn from the facts that are undisputed, or where there are issues of credibility See, Mapfre Ins. Co. of NY v. Ferrall, 214 AD3d 635, 638 (2d Dept. 2023);Ruiz v. Griffin, 71 AD3d 1112, 1115 (2d Dept. 2010).

Discussion

Given the County's and Village's competing motions for summary judgment addressing the viability of the same claims set forth in the County's SAC, and the fact that both parties' submissions address both motion sequences (Mot. Seqs. # 4 and #9) collectively in the same moving papers, the Court will analyze each of the causes of action together under the context of the County's motion for partial summary judgment on liability and the Village's cross-motion seeking dismissal of all claims.

The County's Trespass Claims

The County's SAC sets forth two separate and distinct claims of trespass against the Village and its Co-Defendants, one under New York's common law trespass and the other under Local Law 13. As to trespass claims against the Village, the County asserts the Village caused, directed, aided and abetted the Co-Defendants to unlawfully and without consent enter Gonzaga Park and cut, remove, injure, and destroy underwood, timber and trees.

The elements of a cause of action sounding in trespass are an intentional entry onto the land of another without justification or permission. Marone v. Kally, 109 AD3d 880, 883 (2d Dept. 2013)(citing Volunteer Fire Assn. of Tappan, Inc. v. County of Rockland, 101 AD3d 853,855 [2d Dept. 2012]; Rager v. McCloskey, 305 NY 75, 79 [1953]). Intent is defined as intending the act which produces the unlawful intrusion, where the intrusion is an immediate or inevitable consequence of that act. Id. Liability may attach regardless of defendant's mistaken belief that he or she had a right to enter. Volunteer Fire Assn. of Tappan, Inc. v County of Rockland, supra. at 854; State of New York v. Johnson, 45 AD3d 1016, 1019 (3d Dept. 2007).

Even where the defendants did not enter the plaintiff's land, the defendants can be held liable for trespass if they "caused or directed another person to trespass." Spellburg v. South Bay Realty, LLC, 49 AD3d 1001 (3d Dept. 2008) (citing Golonka v. Plaza at Latham, 270 AD2d 667, 669 [3d Dept. 2000]); 104 NY Jur. 2d, Trespass § 29, at 492-493; also, Axtell v. Kurey, supra. (holding liability was properly imposed upon defendant where credible evidence showed he designated area from which trees were to be cut, going so far as to direct logger to cut 30 trees on plaintiffs' land rather than 30 on his own land). It has been held that a logger who trespasses while working as an independent contractor for an adjoining landowner "does not provide [the adjoining landowner] with an impenetrable shield for it has long been the law of this state that property owners are not protected from liability for a trespass committed by an independent contractor if they directed the trespass or such trespass was necessary to complete the contract" Jones v. Castlerick, LLC, 128 AD3d 1153 (3d Dept. 2015); Axtell v. Kurey, 222 AD2d 805, 805 (3d Dept. 1995), lv. den. 88 NY2d 806 (1996).

In turning to the parties' respective motions for summary judgment on the County's trespass claims, the Court finds the County has set forth sufficient evidence to make a prima facie showing the Village caused, directed and set into motion the Co-Defendants', particularly Cioffi's, improper acts of incursion and trespass upon the County's Gonzaga Park, without consent or authority. Despite the Village's attempts to distance themselves from the construction of the Mangin Bypass, including any incursion or trespass into the County's Gonzaga Park, there is overwhelming evidence that the Village was fully behind the coordinating, planning and implementation of the construction of the Mangin Bypass.

The County sets forth irrefutable evidence, including the testimony of Village officials Stern and Eckstein, correspondence between the Village and Co-Defendants, and the Village's own records all demonstrating the Village orchestrating the construction Mangin Bypass roadway prior to receiving known required approvals from the State and County. The Village does not dispute the construction of the Mangin Bypass was a high priority project, a project Stern stated during a public meetings as an urgent "life safety issue" for the Village's residents and was "a top priority of the agenda since this administration took over". This orchestration and planning by the Village began as early as January 3, 2021 when, in an email from developer Gelb to Stern and copying Eckstein, entitled "Mangin Rd. Extension to Seven Spring Rd.", Gelb commends Stern on the speech he made at the meeting held on the prior night about the Mangin Bypass and the promises made by private property owners, including Mangin and Forth Worth (Sheri Torah) to donate land to use to for the bypass. Gelb's January 3rd email to Stern discusses the Village offering a quid pro quo with Sheri Torah to approve their special use permit to open their school in exchange for donating the land for the roadway. Stern and the Village acknowledge coordinating the construction and opening of the Mangin Bypass road with owners of the adjacent properties, Mangin and Fort Worth (Sheri Torah). Sheri Torah school administrator Ostreicher testified that when Fort Worth purchased the property Stern told him the Village was going to "create a road" adjacent to the school and directed Sheri Torah to hire Cioffi to conduct the road grading and told him Sheri Torah would be required to pay for their share. When Sheri Torah complained about excessive billing by Cioffi, it was the Village, not any of the private landowners, that contacted Cioffi to have the rates reduced. Significantly, the video recorded in the summer of 2022 depicts Stern on the site of the Mangin Bypass, introducing the Village's "fence guy, Moshe" and directing Co-Defendants, including Cioffi, where and how to perform the road grading and tree removal, including instruction to bring heavy machinery to complete the work.

In 2021 the Village, through Stern and Eckstein, were corresponding and meeting with County and State officials to request the known municipal approvals required to alienate public parkland and address the reversion clause on the Gonzaga Park deed. Both Eckstein and Stern testified the Village was fully aware it needed to obtain approval for the Mangin Bypass to traverse Gonzaga Park, and they each testified at length about the efforts to contact both State and County officials to obtain the necessary approval. The Village has failed to produce a single document establishing that any approval or consent was given by either the State or the County to allow the Mangin Bypass to traverse Gonzaga Park.⁹ Despite not having the required municipal approvals, in 2022, the Village board passed resolutions authorizing the Mayor to perform all actions required "to reopen Mangin Road to Seven Springs Road".

The Village, in opposition to the County's motion and in support of its cross-motion, does not refute or rebut these actions taken by its own officials in furtherance of the Mangin Bypass without the required municipal approvals. Instead, the Village argues the County fails to set forth any evidence that establishes a "single connection" between the Village and the cutting of trees in Gonzaga Park, including any contracts, agreement, invoice, or payment by the Village, arguing it was Mangin and Fort Worth (Sheri Torah) who hired the contractors to start the work on the Mangin Bypass. This plausible denial defense by the Village is untenable in the face of the above stated acts of coordination and execution by Stern, Eckstein, and the Village to move the Mangin Bypass project forward. Moreover, the fact the payments to Cioffi for performing the road grading and tree cutting were made by Sheri Torah are not, as the Village argues, dispositive on this issue, particularly given that Sheri Torah's administrator testified Stern told him the Village was behind the project and directed him to hire Cioffi. In furtherance of its plausible denial defense, the Village suggests the County failed to demonstrate any intentional trespass onto Gonzaga Park by Village officials. The Court disagrees, as the County needs only establish the Village officials caused the intrusion by a third-party. Jones v. Castlerick, LLC, supra., Spellburg v. South Bay Realty, LLC, supra. Accordingly, the Court finds the County has set forth sufficient proof to find that the Village caused, directed, aided and abetted the actions of Co-Defendants, including Cioffi, and set into motion the commencement of work on the Magin Bypass without receiving the required municipal approvals, and allowed the alleged unlawful incursion into Gonzaga Park.

Next, in turning to the actual physical trespass and incursion element of the trespass claim, the County through the testimony and analysis of licensed surveyor Barry licensed and licensed engineer Ewald, sets forth sufficient and competent evidence establishing a prima facie showing of the entry into and damage to nearly 1.45 acres of forestry in Gonzaga Park. Barry's affidavit sets forth the extensive investigation and process he and his survey crew conducted at Gonzaga Park in December 2022 following a complaint of a potential trespass into the park, to determine if the cutting of trees and road grading extended onto County property. Barry testified to his use of the County's Global Positioning Equipment, analysis of property deeds and surveys, and Barry and his crew made two site visits to Gonzaga Park in December 2022 to conduct further field work to verify their findings. Barry attested with a reasonable degree of surveying certainty in calculating the area disturbed and cleared area was approximately 1.45 acres and is substantially located over the western property line between Gonzaga Park and the adjoining parcel owned by Fort Worth.

According to Ewald, once the location of the incursion into Gonzaga Park was identified, he used aerial photographs of Gonzaga Park dated April 13, 2022 and September 21, 2022 that had been taken by Nearmap to demonstrate the significant clearing and destruction of underwood and trees located in and near Gonzaga Park that took place between April and late September 2022. Ewald also used property boundary overlays on the aerial photographs, based on County and municipal tax maps, to help locate the affected area.¹⁰ In December, 2022, Ewald also visited the site and viewed the damage to Gonzaga Park, where he observed property line markers located at the site clearly delineating the property lines between Gonzaga Park and the adjacent parcel to the west of the park. According to Ewald, notwithstanding the clear delineation of the property line, contractors entered the County's property and cut and removed massive amounts of timber and trees and began grading and constructing a roadway on the County's property. Ewald's findings were that a significant clearing and destruction of underwood and trees located in and near Gonzaga Park took place between April and late September 2022. Based on his observation, Ewald stated it was evident that the person or entities performing such work on County property removed excavated soil, rock and severed trees, timber and underwood from the County property to some off-site location.

The Village's opposition and moving papers challenge the sufficiency of the testimony and findings of both Barry and Ewald, arguing the County's record in support of summary judgment creates more questions than it does answers. As to Barry's findings, the Village cites to inconsistencies and omission in his analysis, creating issues of fact and questions as to the reliability of the findings, including: Barry's sworn testimony wherein he admits the Village of Woodbury/Village of Blooming Grove boundary line as depicted on his 2025 survey map is in a different location than the Village/Village line as depicted on the official County of Orange map; Barry's inability to state whether the location of the AT&T right of way is correct on and his December 2022 worksheet or on his 2025 survey map and that the AT&T easement may not be in the correct location on his 2025 survey map; and that Barry's depiction/location of the edge of the disturbed area in relation to the AT&T right-of-way do not match on his 2022 worksheet and his 2025 survey map.

As to Ewald's analysis and findings, the Village argues the aerial photographs relied upon by the County are inadmissible because they were taken by non-party Nearmap and are being proffered by the County without proper business record foundation or accompanying expert testimony. In response, the County argues the Appellate Division, Second Department has determined that Nearmap photographs are admissible in the context of a dispute over a property boundary, citing Corsi v. Town of Bedford, 58 AD3d 225 (2d Dept. 2008) (holding aerial photographs taken pursuant to ongoing contract between county and aerial photographer admissible as business exception to hearsay where they were routinely taken in the course of the county's regular business). The County also relies upon CPLR § 4532-b which provides in relevant part, that the Court shall take judicial notice of "an image, map location, distance, calculation or other information taken from a web mapping service, a global satellite imaging site, or an internet mapping tool" and such image is admissible absent a viable objection that such image does not fairly or accurately portray that which it is being offered to prove. The County argues the Village has not offered a plausible objection to the introduction of such evidence, contending the statute creates a rebuttable presumption that a digital mapping presentation is a fair and accurate depiction of the image. See, CPLR § 4532-b (McKinney Supp. 2026); Rvabaya v. City of New York, 220 AD3d 903 (2d Dept. 2023) (holding trial court properly took judicial notice of web-based map image in determining summary judgement motion).

The Village correctly notes Corsi is distinguishable because in that matter there was authenticating testimony from the town employee who took the aerial photographs whereas here, the County did not take the photographs but seeks to introduce them as business records produced in the regular course of business based upon its contract with Nearmap. CPLR§ 4532-b provides that, in the absence of a proper objection, the Court shall take judicial notice of aerial photographs being offered into evidence. Here, the Village's objection to the County's reliance on aerial photography is based on a lack of proper foundation for the images, rather than a substantive objection that the images do not fairly and accurately portray that which they are being offered to prove. Therefore, pursuant to CPLR § 4532-b, the photographs may be properly authenticated by Nearmap and deemed admissible at the time of trial. See, CPLR § 4532-b (McKinney Supp. 2026). Thus, at trial the County's use of properly authenticated aerial photographs, together with Ewald's testimony as to his use of the County's tax map overlays, presents a question of weight rather than admissibility of the evidence. See, Rvabaya v. City of New York, 220 AD3d 903 (2d Dept. 2023).

Nevertheless, the Court finds there are sufficient questions of fact warranting consideration by a jury as the extent of the physical trespass and incursion onto Gonzaga Park, thus requiring denial of both the County's motion and the Village's cross-motion. A motion for summary judgment should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility. Ruiz v. Griffin, 71 AD3d 1112, 1115 (2d Dept. 2010) quoting Scott v. Long Is. Power Auth., 294 AD2d 348 (2d Dept. 2002). Here, the competing motions for summary judgment demonstrate disputed facts as to the physical location and the extent of the alleged trespass or incursion onto Gonzaga Park, with conflicting testimony by Village and County witnesses, requiring assessments of credibility as well as evaluation of conflicting inferences to be drawn from the testimony, all of which is within the sole province of a jury. Ruiz v. Griffin, supra. Accordingly, summary judgment is not warranted in favor of either moving party.

Notwithstanding the foregoing, the Court agrees that under the "public trust doctrine" the County's common law trespass claims must be dismissed as no such claim can be made against public property. Adopting the arguments made by RSBM in its motion for summary judgment against the County, the Village argues Gonzaga Park, like all other parks within the State of New York, is land impressed with a public trust for the benefit of the people of the State. See, Potter v. Collis, 156 . . 16 (1898). The Village contends Gonzaga Park is equitably owned by public despite the fact fee title is held by the County and accordingly, there can be no trespass because an element of trespass is the breaching of private property. See generally, Rager v. McCloskey, 305 . . 75, 79 (1953); Navarro v. Fed. Paper Bd. Co., 185 AD2d 590, 592 (3d Dept. 1992); In re Cent. Parkway, City of Schenectady, 140 Misc. 727, 729 (Sup. Ct. 1931).

Indeed, it is well settled that:

"The primary purpose of parks is to facilitate free public means of pleasure, recreation, and amusement and thus provide for the welfare of the community. To this end, regulations may be enacted by the proper legislative body in connection with the operation of a park, with a view to insuring the safety, comfort, and convenience of the people in their appropriate uses of it. The predominant goal of park officials is that the parks are to be so administered that their ornamental features are preserved and improved and that they are fit for the beneficial uses of the people. Accordingly, adequate and reasonable rules may be imposed on persons patronizing or visiting a park in order that the general health, welfare, and safety will be properly protected", (footnotes omitted)

See, 81 NY Jur. 2d Parks, Etc. § 536.

The Village notes the County's recognition of the public trust doctrine when it enacted Local Law 13, which is the subject of the seventh cause of action in the County's SAC. This Local Law sets forth the regulations enacted by the County pertaining to the operation of its parks. The Local Law creates what constitutes trespass against parkland, the penalties for violations and the procedures for enforcement. Since one cannot trespass on public land in the same manner as trespassing on private property, the Local Law creates a vehicle for the County to protect the public park. The Village concedes that if the County were able to establish violations of Local Law 13 by the Village, the Village would be subject to Local Law 13's penalty provision.

The Court has conducted an exhaustive search of the case law in New York and found no authority supporting a claim for common law trespass upon public land. The County's opposition to the Village's motion fails to address the argument with respect to the viability of a common law trespass claim and effectively, the County concedes no such claim exists.Accordingly, to the extent the County's claims against the Village are premised on a theory of common law trespass, including claims of aiding and abetting common law trespass, as asserted in the first cause of action, this claim is dismissed and, as to this cause of action only, the Village's motion is GRANTED.

However, as to the County's claims the Village caused or contributed to the trespass under Local Law 13 as asserted in the fifth cause of action, there are factual issues warranting consideration by a jury and therefore, summary judgment is not appropriate and, as to this cause of action, both motions are DENIED.

The County's RPAPL § 861(1) claim

The County's third cause of action alleges violation of § 861(1) of RPAPL. This section, titled "Action for cutting removing, injuring or destroying trees or timber, and damaging lands thereon" provides, in pertinent part, that:

If any person, without the consent of the owner thereof, cuts, removes, injures or destroys, or causes to be cut, removed, injured or destroyed, any underwood, tree or timber on the ... land of a ... county, or damages the land in the course thereof, an action may be maintained against such person for ... any permanent and substantial damage caused to the land .... Such reparations shall be of such kind, nature and extent as will reasonably restore the lands affected by the violation to their condition immediately before the violation and may be made by physical restoration of such lands and/or by the assessment of monetary payment to make such restoration.

See, RPAPL § 861(1).

Moreover, any person who engages in, or causes another to engage in, the cutting, removing, injuring or destroying of the trees of another without the owner's consent is liable for such conduct. Jones v. Castlerick, LLC, supra, 128 AD3d at 1154-1155; RPAPL § 861(1); Vanderwerken v. Bellinger, 72 AD3d 1473, 1474 (3d Dept. 2010).

As discussed above, there is testimonial and video evidence to support the County's position the Village caused and directed the Co-Defendants, including Cioffi, to commence work on the Mangin Bypass without obtaining the required municipal approvals, resulting in an improper incursion onto Gonzaga Park and allegedly causing damage to the parkland. The video evidence depicting Stern giving Cioffi, and arguably other Co-Defendants, specific direction on where, when, and how to construct the Mangin Bypass, which the Village was well aware would traverse Gonzaga Park.

As was discussed and determined herein with respect to the trespass claim, there are sufficient issues of fact as the extent of the physical trespass and incursion onto Gonzaga Park and as to the actual boundary lines between the properties. Additionally, the Court finds there are factual disputes as to the amount of underwood, trees and timber removed and destroyed, which finding warrants denial of both the County's motion and the Village's cross-motion for summary judgment dismissing the RPAPL § 861 claim asserted in the third cause of action. Ruiz v. Griffin, supra; also, Jones v. Castlerick, LLC, supra. (holding Supreme Court erred in granting partial summary judgment under RPAPL § 861 where there existed numerous factual issues regarding liability including identifying correct boundaries where lumbering activities occurred).

Accordingly, as to the Village's liability under RPAPL § 861(1) as alleged in the third cause of action, both the County's motion and the Village's cross-motion are DENIED, and this claim will be given to the jury to determine at trial.

The County's Conversion Claim

The County's fourth cause of action advances a claim for conversion. Conversion occurs when someone, intentionally and without authority, assumes or exercises control over personal property belonging to someone else, interfering with that person's right of possession. See, Matter of Baugher, 219 AD3d 935,936 (2d Dept. 2023); also, Gracey v. Van Camp., 299 AD2d 837 (4th Dept. 2002)(conversion claim concerning plaintiff's timber upheld, notwithstanding jury's finding defendant had probable cause to believe he owned land from which trees were taken). Conversion is an intentional tort that occurs when someone intentionally takes control of another person's property without authority. Jemison v. Crichlow, 139 AD2d 332 (2d Dept. 1988).

In its cross-motion, the Village argues the County's claim for conversion must be dismissed, as the County has offered no proof that the Village exercised unauthorized dominion over such property. The Court agrees. The County's moving papers fail to set forth any evidence the Village exercised dominion and/or control over any timber or other physical materials related to the roadway construction in Gonzaga Park. As set forth above, though there is evidence from which a jury could conclude the Village caused and directed other Co-Defendants to enter the park and remove soil, rocks and trees, there is no evidence from which a jury could conclude the Village itself performed any act that would constitute conversion.

Accordingly, as to the claim for conversion as alleged in the fourth cause of action, the County's motion for liability against the Village is DENIED and the Village's cross-motion to dismiss this claim is GRANTED.

The County's SEQRA Claim

The County's sixth cause of action alleges the Village violated SEQRA, codified in Article 8 of New York's Environmental Conservation Law. SEQRA provides that all state and local governments and agencies/departments thereof must consider environmental impacts equally with social and economic factors during discretionary decision making and that "actions" requiring environmental review include:

1. projects or physical activities, such as construction or other activities that may affect the environment by changing the use, appearance or condition of any natural resource or structure, that

i. are directly undertaken by an agency; or

ii. involve funding by an agency; or

iii. require one or more new or modified approvals from an agency or agencies;

2. agency planning and policy making activities that may affect the environment and commit the agency to definite course of future decisions

6 N.Y.C.R.R. § 617.2(b).

It is established law that the heart of SEQRA is the Environmental Impact Statement (EIS) process used to review any action that may have a significant effect on the environment, and an EIS must be prepared regarding this action prior to the commencement of that action. Cedar St. Comm. v. Bd of Educ. Of E. Hampton Union Free Sch. Dist., 223 AD3d 738, 740 (2d Dept. 2024). Here, the County argues the Village's planned Mangin Bypass roadway will have an undisputed "significant effect" on the environment, thus requiring SEQRA review prior to taking any action to construct the roadway. Id. The Court agrees. Based upon the testimony of the County professionals, the Mangin Bypass road marks not only a considerable physical disturbance of a natural resource within Gonzaga Park, consisting of pristine virgin forest and numerous hiking trails, but also includes designations by the New York State Department of Environmental Conservation (DEC) and significant habitat endangered/threatened species of animals.

As explained by the Court of Appeals in King v. Saratoga County Bd. of Supervisors, "when the Legislature enacted SEQRA . . . [it] formally recognized that environmental concerns should take their proper place alongside economic interests in the land use decision-making processes of State and local agencies (citations omitted) . . . with the mandate that agencies implement SEQRA's procedural mechanisms to the "fullest extent possible" reflects the Legislature's view that the substance of SEQRA cannot be achieved without its procedure, and that departures from SEQRA's procedural mechanisms thwart the purposes of the statute. Thus, it is clear that strict, not substantial, compliance is required." (emphasis supplied). King v. Saratoga County Bd. of Supervisors, 89 NY2d 342, 347 (1996); see also, Matter of Tri-County Taxpayers Assn. v. Town Bd of Town of Queensbury, 55 NY2d 41 (1982) (finding town violated SEQRA by failing to prepare EIS before adopting resolutions to establish local sewer district and declaring local law null and void); Chinese Staff & Workers Assn. v. City of New York, 68 NY2d 359 (1986) (special permit to construct a high-rise luxury condominium in Chinatown section of New York City nullified based upon deficient environmental review and failure to prepare EIS before issuance of permit); Matter of E.F.S. Ventures Corp. v. Foster, 71 NY2d 359 (1988)(holding construction of oceanside resort without benefit of comprehensive environmental review violated SEQRA and governmental action was deemed void).

As discussed at length above, the evidence shows construction on the Village's Mangin Bypass roadway commenced as early as the summer of 2022 when Stern directed Cioffi where and how to start the road construction. Therefore, the Village's violation of SEQRA turns on whether the required EIS was prepared and filed with the state and local agencies prior to causing and directing the commencement of construction on the Mangin Bypass. There is no evidence in the record before the Court that the Village, or any Co-Defendants, filed an EIS or conducted any other environmental review required under SEQRA, prior to commencement of the construction.¹¹ The Village's opposition seeks to re-hash its "plausible denial" argument, claiming it took no action in furtherance of the Mangin Bypass that would have required it to file any applications for environmental review under SEQRA, and contending any actions taken in furtherance of the Mangin Bypass were undertaken by Co-Defendants, including Mangin, Sheri Torah/Fort Worth, and Cioffi. Again, there is an extensive record of the actions taken by Village officials causing and directing the work to commence on the Mangin Bypass without any compliance with SEQRA. The Court rejects the Village's argument for dismissal based upon the County's failure to file an Article 78 petition, when a simple review of the County's SAC shows the County filed a hybrid Complaint/Petition that includes claims under Article 78 of the CPLR.

Accordingly, the County's motion for partial summary judgment on liability under SEQRA as alleged in the sixth cause of action is GRANTED and accordingly, the Village's cross-motion for summary judgment seeking dismissal of the sixth cause of action is DENIED.

The County's GML § 239-l and § 239-m Claims

The County's seventh cause of action asserts a claim against the Village for violation of § 239-1 of GML entitled "Coordination of certain municipal zoning and planning action; legislative intent and policy". Pursuant to § 239-l(2) of GML, the section is designed to bring pertinent inter-community and county-wide planning, zoning, site plan and subdivision considerations to the attention of neighboring municipalities and agencies having jurisdiction. Such review may include inter-community and county-wide considerations in respect to the following:

(a) compatibility of various land uses with one another;

(b) traffic generating characteristics of various land uses in relation to the effect of such traffic on other land uses and to the adequacy of existing and proposed thoroughfare facilities;

(c) impact of proposed land uses on existing and proposed county or state institutional or other uses; [and]

(d) protection of community character as regards predominant land uses, population density, and the relation between residential and nonresidential areas[.]

GML § 239-1(2) (McKinney's 2021).

Section 239-m of the GML is entitled "Referral of certain proposed city, town and village planning and zoning action to be County Planning or Regional Planning Council: report thereon; Final Action". In relevant part, it states that in any "village which is located in a county which has a county planning agency ... each referring body shall, before taking final action on proposed actions included in subdivision three of this section, refer the same to such county planning agency[.]" Such actions include "issuance of special use permits" and "approval of site plans." GML § 239-m(3)(b) states that such actions "shall be subject to the referral requirements of this section if they apply to real property within five hundred feet of the following:

(i) the boundary of any city, village or town; or

(ii) the boundary of any existing or proposed county or state park or any other recreation area; or

(iii) the right-of-way of any existing or proposed county or state parkway, thruway, expressway, road or highway[.]

GML § 239-m (McKinney's 2021).

Similar to SEQRA, the County argues these GML statutes mandate that certain municipal projects — unequivocally including the Village's proposed roadway - be referred to the county planning agency (in this case, the Orange County Department of Planning) for review priorto any local action being taken, especially here, where County-owned land is involved. The Court agrees.

It is well established that municipal decisions are null and void if the decision or action concerns matters that require compliance with GML statutes and the municipality does not first refer the matter to the relevant planning agency. See Matter of Eastport Alliance v. Jackie Lofaro, 13 AD3d 527 (2d Dept. 2004); Ernalex Const. Realty Corp. v. City of Glen Cove, 256 AD2d 336 (2d Dept. 1998). Here, it is undisputed that the Village did not obtain either the review or approval of its proposed roadway by the relevant planning agency.

The Village again reverts to its default argument - that it did not take any action related to the Mangin Bypass and therefore, no application or referrals under the GML were required - and seeks dismissal of these GML claims. Once again, the Court relies upon the extensive record of the actions taken by Village officials causing and directing the Co-Defendants concerning the work to commence construction of the Mangin Bypass, all requiring the Village's compliance with the GML and the inter-community review by the relevant planning agencies. There is no evidence in the record before the Court of any applications or requests for referral having been made by the Village in accordance with the GML.

Accordingly, the County's motion for partial summary judgment on liability under its GML claims as asserted in the seventh cause of action is GRANTED and the Village's cross-motion for summary judgment seeking dismissal of the seventh cause of action is DENIED.

Motion by RSBM (Mot. Seq. #5)

RSBM seeks dismissal of the County's claims against it for common law trespass and trespass in violation of Local Law 13 as asserted in the first and fifth causes of action; violation of RPAPL § 861 in the third cause of action, and for conversion in the fourth cause of action.

As noted, supra, in the discussion relating to the Village's cross-motion as to the first cause of action for common law trespass, RSBM also argues there is no such cause of action available to the County since Gonzaga Park is public land and the necessary element of trespass - breaching of private property — is not met. As to the claim for trespass in violation of Local Law 13 asserted in the fifth cause of action, RSBM argues this claim cannot stand because Local Law 13 is penal in nature due to the express provisions of the enforcement clause that imposes fines and/or imprisonment for violations and therefore, enforcement of violations requires service of an accusatory instrument and the Court's jurisdiction is limited to the accusatory instrument.

As to the third and fourth causes of action for violation of RPAPL § 861 and conversion, RSBM asserts the County is improperly including RSBM summarily in allegations against the Co- Defendants. RSBM argues the County has not pleaded and will not be able to prove RSBM played any part in the cutting or clearing of trees or grading of soil in Gonzaga Park and argues the County named it as a Defendant solely because its excavator was observed parked in the vicinity of Gonzaga Park at times relevant to the challenged activity therein. RSBM submits the affirmation Samuel Holtzer ("Holtzer"), described as a member of RSBM, that was originally submitted in opposition to the County's motion for injunctive relief that was considered by this Court in January 2023. In his affirmation, Holtzer denies that RSBM's excavator was parked on County property, arguing that it was only in the vicinity because RSBM had been retained by an individual named Arthur Meisels to perform excavating work on his property that abuts the County's property.¹² In support of this contention, RSBM also provides a copy of a one-page agreement dated November 30, 2022 and electronically signed by Holtzer and Miriam Meisels that purports to reflect retainer of RSBM by an entity known as AM Seven Springs LLC c/o Miriam Meisels, to "clean all fallen trees located throughout the property, as well as repair the trail located on the property" which property is identified as "a parcel of vacant land consisting of 3.06 acres located on Seven Springs Road corner {sic} Mountain Road in the Town of Monroe" known as Section 1, Block 1, Lot 23.3.

In opposition, the County argues the deposition testimony of its Director of Real Property Paul Wiley ("Wiley") who examined the marked boundary line between Gonzaga Park and the Sheri Torah/Fort Worth property, as well as satellite photographic evidence, demonstrates RSBM's excavating truck was parked within the boundary of Gonzaga Park at the time relevant to the unauthorized activity alleged and as such, a reasonable inference can be made that RSBM , an entity in the business of land excavation, was involved in the cutting, clearing and grading that took place in Gonzaga Park.

RSBM argues that the County failed to respond to its argument concerning the unavailability of a claim for common law trespass and the improper assertion of civil liability under Local Law 13 as alleged in the first and fifth causes of action. RSBM reiterates its position there is no evidence to rebut its demonstration that it was not involved in any cutting or excavating activity in Gonzaga Park. Though RSBM primarily maintains its excavator was not parked within Gonzaga Park but instead was situated on adjacent property to perform tree clearing and excavation work pursuant to a contract with a nearby landowner that it did not actually perform, it concedes there might be a question whether its excavator was actually parked on County land, but argues this is not a material fact because there is still no common law civil trespass on public land, and there is still no evidence RSBM played any role with respect to cutting or clearing trees or grading any property within Gonzaga Park even if it is determined its excavator was parked there. RSBM reiterates that if the County wanted to enforce a claim of trespass against RSBM, it could have brought a criminal action and fine/penalty per its local law.

As discussed supra herein,the first cause of action for common law trespass is not viable since Gonzaga Park is public property and the element of unauthorized entry onto private property is not met. Accordingly, summary judgment is granted to RSBM dismissing the first cause of action for common law trespass.

As to the fifth cause of action that asserts violation of Local Law 13, RSBM argues the law is penal in nature since Section 6 thereof, titled "Enforcement", states:

Any person who violates any provision of this law or any rule or regulation promulgated hereunder shall be, upon conviction thereof, subject to a fine not to exceed Five Hundred $500.00) Dollars or by imprisonment for a term not to exceed ninety (90) days, or both, for each such violation.

Based on the language of this section, RSBM argues the County is confined to the penalties for offenses as defined in the Penal Law. However, RSBM's argument neglects to consider Section 4 of the Local Law, titled "Conduct and Prohibitions" which states, in relevant part:

4. All persons are prohibited from doing any of the following in or upon the Parks and Park Facilities:

a. entering, remaining upon and/or using the Parks and/or Park Facilities at any time other than as scheduled or made available for use by County authority. Any such unauthorized entry and/or use shall constitute a trespass and be subject to civil and criminal prosecution, in addition to any other penalties and sanctions authorized by this Local Law. (emphasis provided)

Thus, in addition to the enforcement provisions, Local Law 13 expressly also subjects violators of conduct enumerated in Section 4 to civil prosecution as well as criminal prosecution. Based on this express language, the County is well within its rights to pursue civil prosecution of violators of the Local Law, and the Court rejects RSBM's attempt to portray the County's redress for trespass in violation of Local Law 13 as limited to criminal prosecution, and declines to dismiss the County's claim on that basis.

The Court further finds there is both testimonial and photographic evidence that an excavator belonging to RSBM, an entity in the business of land excavating, was present in Gonzaga Park where the unauthorized grading and tree-clearing activity allegedly occurred, which evidence is sufficient to support the County's allegation RSBM played a part in the clearing work. That Holtzer provides a plausible alternative explanation for the presence of RSBM's excavator at the location of the challenged activity creates a question of fact warranting consideration by a jury. Ruiz v. Griffin, supra; also, Jones v. Castlerick, LLC, supra.

The third cause of action asserted against RSBM alleges liability pursuant to RPAPL § 861 which, as discussed supra herein, permits an action against anyone who, without the consent of the property owner cuts, removes, injures or destroys, or causes to be cut, removed, injured or destroyed, any underwood, tree or timber on the land of a county, or damages the land in the course of that action. In light of the Court's finding that a factual issue exists as to RSBM's involvement in the excavating work in furtherance of the Mangin Bypass, the County's claim pursuant to RPAPL § 861(1) as alleged in the third cause of action must also be given to the jury to determine at trial. Accordingly, as to this cause of action, RSBM's motion is DENIED.

Lastly, RSBM also seeks dismissal of the County's cause of action for conversion as alleged in the fourth cause of action. As discussed herein, supra, conversion is the unauthorized assumption and exercise of the right of ownership over goods belonging to another to the exclusion of the owner's rights. Hamlet at Willow Creek Dev. Co., LLC v. Ne. Land Dev. Corp., 64 AD3d 85, 113 (2d Dept. 2009) (citing State of New York v. Seventh Regiment Fund, 98 NY2d 249, 259 [2002]); Colavito v. New York Organ Donor Network, Inc., 8 NY3d 43, 50 (2006); DiMarco v. Baron Lincoln Mercury, Inc., 24 AD3d 409, 411 [2d Dept. 2005]). Moreover, soil or sand which has been severed from realty becomes personal property and may be subject to an action for conversion Hamlet at Willow Creek, supra, 64 AD3d at 114. For the same reasons this Court declines to dismiss the County's claims for trespass in violation of Local Law 13 and for statutory liability pursuant to RPAPL § 861, dismissal of the claim for conversion is likewise unwarranted. Conflicting inferences may be drawn from the evidence of RSBM's excavator at the site of the alleged incursion, and it is for the jury to decide the credibility of Holtzer's explanation concerning another reason for the excavator to be parked there at that time. Accordingly, as to this cause of action, RSBM's motion is also DENIED.

Motion by Fort Worth/Sheri Torah (Mot. Seq. #6)

Fort Worth and Sheri Torah seek dismissal of the claims asserted in the second cause of action for aiding and abetting the trespass of Defendants Cioffi, RSBM, Walters, and Viking; for violation of RPAPL § 861 in the third cause of action; for conversion in the fourth cause of action; and for trespass in violation of Local Law 13 in the fifth cause of action.

In their joint motion, Sheri Torah/Fort Worth argue all claims must be dismissed because they were not involved in the coordination or facilitation of the Village's project. Both movant entities deny directing, supervising, or controlling any construction activity, and deny ever authorizing or instructing any entity to enter or perform any work in Gonzaga Park. Ostreicher maintains that Sheri Torah understood the Mangin Bypass to be a governmental roadway initiative arranged by the Village in discussions with the County, and he denies that Sheri Torah was in any way involved in the coordination or facilitation of this project that was initiated by the Village. Ostreicher also takes issue with the County's stated position on its motion that Stern coordinated the creation of the Mangin Bypass with Sheri Torah and denies being involved in the coordination of the project, asserting Sheri Torah only shared expenses and made limited financial contributions at the Village's request. Ostreicher further denies Sheri Torah knew where the road would go or who would build it, and asserts it knew only that the road would not cross its property. According to Ostreicher, Sheri Torah merely paid invoices because the Village advised it was initiating a road project, it relied on what it was told and it believed everything was legal since the information came at the request of the Village, a legal municipality.

In opposition, the County argues the evidence demonstrates Sheri Torah's involvement since Stern testified he spoke with Ostreicher regarding the January 3, 2021 Gelb email that advised Mangin would be donating land to Sheri Torah in furtherance of the project and suggested Sheri Torah could "streamline" its application for school use approval in exchange for a 50-foot right of way for the property. The Gelb email also states the Village, Mangin, and Sheri Torah would all benefit from the project connecting the school's parcel through Gonzaga Park. The County argues the evidence demonstrates Fort Worth (and Mangin) agreed to pay a portion of the cleanup and paving costs and that Sheri Torah paid Cioffi's invoices for its work. The County further argues Sheri Torah knew it was paying invoices to Cioffi for a road it knew would not traverse its property and argues Sheri Torah's knowledge of the project is demonstrated by Stern's testimony of his discussion with Ostreicher, whose feigned ignorance of the specific location of the road constitutes willful blindness.

In Reply, movants reiterate the position that neither Sheri Torah nor Fort Worth designed, planned, authorized or supervised, retained or contracted with any contractor to enter Gonzaga Park. Movants argue the County's reliance on portions of deposition testimony that suggest coordination disregards other testimony that demonstrates Sheri Torah was never involved in construction decisions, boundaries, or execution of the Mangin Bypass. The Court rejects movants' premise that there is no triable issue simply because those specific activities were not undertaken. Movants' position disregards the fact that Sheri Torah paid Cioffi's invoices, albeit allegedly at the request of the Village. At a minimum, this fact, combined with Stern's testimony as to his discussions with Sheri Torah (and Mangin) who were "willing to participate" in the project, raises a factual question from which a jury could reasonably conclude Sheri Torah/Fort Worth was actively contributing to the conduct of another party (Cioffi) that constituted trespass and/or unlawful removal timber from Gonzaga Park. Ostreicher's claim that Sheri Torah simply paid Cioffi's invoices at the request of the Village, with "full trust that everything was proper and legal" and with no knowledge or understanding of what work Cioffi was performing or where, presents a matter of credibility, determination of which is not the Court's function on a motion for summary judgment, which motion should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility. Ruiz v. Griffin, supra, 71 AD3d at 1115; Mapfre Ins. Co. of NY v. Ferrall, supra, 214 AD3d at 638. Moreover, on a motion for summary judgment, the evidence must be viewed in the light most favorable to the nonmoving party, and all reasonable inferences must be resolved in favor of the nonmoving party. Adams v. Bruno, 124 AD3d 566, 567 (2d Dept. 2015); Wilson v. Rye Family Realty, LLC, 218 AD2d 836, 838 (2d Dept. 2023).

Here, given the conflicting testimonial and documentary evidence concerning Sheri Torah's payment of Cioffi's invoices issued for its work connected to the Mangin Bypass project, the Court affords the County the benefit of every favorable inference and concludes summary judgment in favor of Sheri Torah and Fort Worth is unwarranted since conflicting inferences may be drawn from the evidence, some of which is necessarily involves issues of credibility.

The second cause of action alleges Sheri Torah and Fort Worth aided and abetted the trespass by Co-Defendants. For the same reasons as discussed supra herein, summary judgment dismissing this claim is not warranted as there is evidence from which a jury could reasonably conclude liability should be imposed on the moving Defendants based on Sheri Torah's payment of Cioffi's invoices, even if at the alleged behest of the Village, for Cioffi's work in Gonzaga Park relative to clearing and grading for the Mangin Bypass. Movants argue the County must prove Defendants participated in, authorized or directed the alleged trespass and the Court finds that the evidence of Sheri Torah's payment to Cioffi is evidence of participation in the alleged trespass.¹³

In light of this determination, it also follows that, as previously discussed supra herein in connection with the Village's motion, Sheri Torah/Fort Worth may still be held liable for any trespass by Cioffi by virtue of its payment of the invoices which can reasonably be interpreted by a jury as contributing to the trespass. Spellburg v. South Bay Realty, LLC, supra; Axtell v. Kurey, supra; Jones v. Castlerick, LLC, supra. Accordingly, as to the second cause of action, Defendants' motion is DENIED.

Movants also seek dismissal of the County's claim of statutory liability under RPAPL § 861, arguing that section requires proof that the defendant personally committed the prohibited act or was directly responsible for it.¹⁴ Contrary to this position, and as was discussed supra herein in connection with the Village's cross-motion, liability under RPAPL § 861 can be imposed on Sheri Torah/Fort Worth because any person who engages in, or causes another to engage in, the cutting, removing, injuring or destroying of the trees of another without the owner's consent is liable for such conduct. Jones v. Castlerick, LLC, supra, 128 AD3d at 1154-1155; RPAPL § 861(1); Vanderwerken v. Bellinger, 72 AD3d 1473, 1474 (3d Dept. 2010). As stated with respect to the trespass claim, a jury could reasonably conclude Sheri Torah's knowledge and agreement of the project, as well as its payment of Cioffi's invoices, contributed to the cutting, removing, injuring or destroying of the trees. Accordingly, as to this claim, the motion is DENIED.

Likewise, as to the fifth cause of action that alleges trespass in violation of Local Law 13, for the same reasons discussed, supra, the evidence is susceptible to conflicting inferences and therefore, as to this cause of action, the motion by Sheri Torah/Fort Worth is also DENIED.

The County's fourth cause of action seeks recovery on a theory of conversion; however, the Court agrees there is no evidence that would support a finding of liability as to Sheri Torah/Fort Worth on a theory of conversion. As previously discussed supra herein, conversion is the unauthorized assumption and exercise of the right of ownership over goods belonging to another to the exclusion of the owner's rights, which can include soil or sand that has been severed from realty.

Hamlet at Willow Creek Dev. Co., LLC v. Ne. Land Dev. Corp., supra, 64 AD3d at 113; Colavito v. New York Organ Donor Network, Inc., supra, 8 NY3d at 50. As this Court held in the motion by the Village, discussed supra herein, while there is evidence from which a jury could conclude Sheri Torah aided and/or contributed to Cioffi's entry and removal trees from Gonzaga Park that could trigger liability under RPAPL § 861, the Court agrees there is no evidence from which a jury could conclude Sheri Torah (or Fort Worth) performed any act that would itself constitute conversion. Therefore, as to the fourth cause of action, Defendants' motion is GRANTED and this cause of action is dismissed as to Sheri Torah and Fort Worth.

Motion by Mangin (Mot. Seq. #7)

Like Sheri Torah/Fort Worth, Mangin, as owner of land adjacent to Gonzaga Park, seeks dismissal of the County's claims asserted against it in the second cause of action for aiding and abetting the trespass of Co-Defendants Cioffi, RSBM, Walters, and Viking; for violation of RPAPL § 861 in the third cause of action; for conversion in the fourth cause of action; and for trespass in violation of Local Law 13 in the fifth cause of action.

Similar to the arguments advanced by Sheri Torah/Fort Worth, Mangin also argues it is merely a passive landowner of an undeveloped 81-acre parcel in the Village and denies having any knowledge of alleged roadwork prior to being informed that unknown actors had trespassed onto its property. Mangin asserts that immediately upon learning of this trespass, it immediately blocked access, retained counsel, and demanded the cessation of all unauthorized activity. Mangin argues its conduct was prompt, unequivocal, and entirely inconsistent with participation in the Mangin Bypass, and that Plaintiff's case against it is based on conjecture and the repetition of generalized accusations that discovery has disproven. Mangin argues the only reasonable conclusion from the full evidentiary record is that it, too, was a victim of unauthorized intrusion rather than a perpetrator of it.

Citing the allegations in the Complaint, Mangin argues the County attempts to implicate it in the alleged illegal creation of the Mangin Bypass by making assertions as to "all Defendants" that are not supported by any facts specific to Mangin. Mangin argues there is no evidence it engaged in, directed, authorized, ratified, contracted for, or even knew about the conduct alleged. Mangin further argues no witnesses testified to any act by Mangin relating to tree-cutting, land clearing, construction, or trespass. Mangin argues none of the asserted causes of action against it are supported by any evidence and therefore must be dismissed. Mangin also adopts the arguments raised by RSBM and Sheri Torah/Fort Worth in their summary judgment motions, discussed supra herein, that the County cannot sustain a cause of action for trespass because they cannot show any of the Defendants committed, directed, authorized, or ratified any entry onto the County's property. Mangin argues the motions by RSBM and Sheri Torah/Fort Worth confirm the claims asserted against Mangin cannot stand and demonstrate the County's theories of liability are unproven and legally untenable and the County's reliance on conclusory allegations in lieu of specific admissible facts is insufficient as a matter of law.

Conversely, the County argues there is evidence the principals of Mangin were aware of and discussed the proposed road through Gonzaga Park, and that the evidence demonstrates Mangin aided the project which involved incursion onto Gonzaga Park. It has been demonstrated that the principals of Mangin at the time relevant to this matter were Mendel Schwimmer, Solomon Schwimmer, Pincus Strulovitch (a.k.a. Joseph Strulovitch and a.k.a. Y.P. Strulowitz), and Irving Bauer. The testimony of Stern specifically references discussions he had with these named principals of Mangin (and also with Sheri Torah) concerning the conceptual plan for a paved road to alleviate traffic problems and Mangin's approval of the paved road over its parcel. Stern specifically testified that they discussed, inter alia, "taking part in a fair share initiative towards the full cleanup and paving costs involved" in [the Project] which they were "willing to participate".

Further, the oft-cited Gelb email of January 3, 2021 expressly references an announcement made the evening prior that Y.P. Strulowitz (a Mangin principal) intended to donate to Sheri Torah the very portion of Mangin's property at issue, and that further suggested Sheri Torah's special use school permit application could be expedited "in exchange for a 50-foot right of way (at the same location where the roadway/trail is located as there is already a roadbed there) for a roadway that would significantly benefit the Village". Further, as to the two parcels reflected in the Gelb email, Stern also testified that it was understood the Mangin Road extension was to traverse from Mangin Road through Mangin's property and through Gonzaga Park and to also have a connection to Sheri Torah.

As with Sheri Torah/Fort Worth, in the face of this evidence it likewise strains credulity for Mangin to argue it had no knowledge or participation in any aspect of the Mangin Bypass. Rather, based on the testimonial and documentary evidence, the Court finds a jury could reasonably conclude that Mangin's actions in donating the specific portion of its land adjacent to Gonzaga Park to Sheri Torah (that was simultaneously enticed to grant a right of way for the new roadway by the prospect of an expedited permit for school use) contributed to the conduct by the other parties that constituted trespass and/or that triggers statutory liability under RPAPL § 861.

As stated supra herein, the court's function on a motion for summary judgment is to determine whether material factual issues exist, not to resolve such issues, and a motion for summary judgment should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility. Ruiz v. Griffin, supra, 71 AD3d at 1115; Mapfre Ins. Co. of NY v. Ferrall, supra, 214 AD3d at 638.

In determining a motion for summary judgment, evidence must be viewed in the light most favorable to the nonmoving party, and all reasonable inferences must be resolved in favor of the nonmoving party. Adams v. Bruno, 124 AD3d 566, 567 (2d Dept. 2015); Wilson v. Rye Family Realty, LLC, 218 AD2d 836, 838 (2d Dept. 2023). As with the motions by the Village, RSBM, and Sheri Torah/Fort Worth discussed supra herein, affording the County the benefit of every favorable inference from the testimonial and documentary evidence, summary judgment in favor of Mangin is unwarranted since the facts are in dispute and conflicting inferences may be drawn from the evidence, all of which is properly for a jury to decide. Ruiz, supra; Mapfre, supra. Accordingly, as to the County's claim that Mangin caused or contributed to the conduct of a Co-Defendant that gives rise to statutory liability under RPAPL § 861 as alleged in the third cause of action, its motion is DENIED.

As to the fifth cause of action that alleges trespass in violation of Local Law 13, for the reasons discussed in connection with the motion by RSBM, supra, and consistent with the holding on the motion by Sheri Torah/Fort Worth, supra, the motion by Mangin is likewise DENIED.

Also consistent with the holding on the motion by Sheri Torah/Fort Worth as to the second cause of action, summary judgment is not warranted as there is evidence from which a jury could reasonably conclude Mangin's actions aided and/or contributed to the conduct of its Co-Defendants which constituted trespass and unauthorized cutting and removal of timber from Gonzaga Park. Accordingly, as to the second cause of action, Mangin's motion is DENIED.

Additionally, and again consistent with the holding on the motion by Sheri Torah/Fort Worth as to the fourth cause of action, the Court likewise finds there is no evidence that would support a finding of liability on a theory of conversion as to Mangin. While a jury could conclude Mangin aided and/or contributed to the efforts of the other parties to enter the Park and to remove trees therefrom, there is no evidence from which a jury could conclude it performed any act that constitutes conversion and therefore, as to the fourth cause of action, the motion is GRANTED and this cause of action is dismissed as to Mangin.

Motion by Cioffi (Mot. Seq. #8)

Cioffi seeks dismissal of the third cause of action alleging statutory liability pursuant to RPAPL § 861, the fourth cause of action for conversion, and the fifth cause of action for trespass in violation of Local Law 13.¹⁵ Cioffi argues the County's pleadings fail to allege any specific facts regarding the date, time, or particular conduct purportedly undertaken by Cioffi that could support a viable cause of action under RPAPL § 861, conversion, or violation of Local Law 13.

As to the third cause of action for violation under RPAPL § 861, Cioffi argues it did not remove, injure or destroy underwood, timber and/or trees located in the Park and/or direct such removal for liability to attach under this statutory provision. Cioffi next argues the County's fourth cause of action for conversion must be dismissed because Cioffi's work in grading and compacting in the vicinity of Gonzaga Park did not involve the severing and removal of soil or other materials to allow for a claim in conversion. Instead, Cioffi posits its "cut and fill" work consisted of grading and compacting soil, with the soil, rubble and debris created during cutting then being used on the same site to backfill low areas. Cioffi argues that since the soil, rubble, and debris were recycled on the same site, the elements of conversion are not met. Cioffi further argues the County has not identified tangible personal property that is subject to a claim in conversion other than trees and brush, which Cioffi claims had already been removed from Gonzaga Park prior to Cioffi beginning its work. Cioffi highlights that the County's claims against it relate to alleged property damage by the construction of an illegal roadway and notes that there is no allegation or proof that Cioffi performed any work in Gonzaga Park that involved the removal of any identifiable personal property to support a claim for conversion.

As to the fifth cause of action alleging statutory liability pursuant to Local Law 13, Cioffi argues this cause of action also fails for the same reason that there is no evidence it engaged in any cutting and removing of trees or destroying underwood. Cioffi argues that since liability under Local Law 13 is predicated on cutting, removing, injuring and destroying of underwood, timber and trees, or causing, directing or contracting of same and there is no evidence that it engaged in any of the alleged activities, the County cannot establish a claim for violation of Local Law 13.

In opposition, the County argues Cioffi, by its own admission, performed road grading in the immediate area of Gonzaga Park without the benefit of a survey, causing damage to the property. The County additionally notes that, notwithstanding Cioffi's claim that his role was limited to road grading and the company had no role in the removal of "underwood, tree or timber", video evidence produced by Cioffi in discovery depicts Stern directing a contractor to "knock this out" necessarily requiring Cioffi to clear "underwood". The County also argues Cioffi advised the Orange County Sheriff he was hired by the Village, through Stern who gave him specific plans detailing the type, manner and location of the roadway work, including cutting a road that went through the woods and included breaking up boulders and removing crushed rock.

In reply, Cioffi challenges the County's reliance on the video, the testimony of the County sheriff, and the invoices issued to Sheri Torah that referenced crushed rock. Cioffi maintains the video does not show it performing any work on County property; the sheriff's affidavit at most suggests the contractors were directed to commence construction at the start of Mangin Road, in an area on the far side of the parcel that is not owned by the County; and the invoices referencing crushed rock referred to materials brought to the site rather than taken from the site which, in any event, was not County property but was Mangin's and Sheri Torah/Fort Worth's properties.

Cioffi seeks dismissal of the County's RPAPL § 861 claim as well as the claim for conversion as it argues there is no evidence, testimony or otherwise, to support the County's contention Cioffi cut or removed trees or soil or caused any trees to be cut or soil to be removed from Gonzaga Park. Cioffi contends all deposition testimony confirms that the County does not know how the trees came to be removed, and supports its position with its own testimony that the trees were already removed from Gonzaga Park before it began any work there. For all of the same reasons, Cioffi also argues the County's claim for trespass in violation of Local Law 13 should also be dismissed.

As to all three of these claims, the Court finds dismissal unwarranted, as the evidence raises factual issues concerning the timing, nature and exact location of Cioffi's work, and conflicting inferences to be drawn from the evidence. Cioffi contends the video merely suggests Cioffi was working on the opposite end of Mangin Road, on neighboring land abutting Gonzaga Park, and that it does not show Cioffi working on County property. Though Cioffi maintains the video does not depict it being directed to work on County owned property, the Court rejects the attempt to narrow the focus to exclude all reasonable inferences that can be drawn from the video when it is considered in conjunction with the amalgamation of evidence relating to the Village's efforts to complete the Mangin Bypass through Gonzaga Park with the use of Mangin's and Sheri Torah/Fort Worth's neighboring property. Contrary to Cioffi's position, the reasonable inferences are not speculation but are matters within the province of a jury to decide. Accordingly, Cioffi's motion is DENIED in its entirety.

Conclusion

It is evident from the arguments that all moving Defendants seek to disavow any knowledge of or participation in any road grading or tree clearing activity in Gonzaga Park in furtherance of the Mangin Bypass. However, contrary to the position of every moving party, the evidence demonstrates myriad issues exist concerning the actions of each Defendant at the time of the incursion onto Gonzaga Park and the removal of trees. While the relative involvement of each Defendant may differ, it cannot be said that the roadwork and removal of trees from Gonzaga Park occurred by some divine intervention and without any action on the part of any Defendant herein. Given the significant conflicting testimony, video, and documentary evidence, there are a multitude of issues that must be considered by a jury, most notably including the conflicting inferences that may be drawn from the evidence and the credibility of witnesses. Accordingly, with limited exceptions as discussed herein, summary judgment is not appropriate. Based on the Court's comprehensive review of the evidence submitted in connection with these motions as discussed herein, the Court finds numerous questions of fact exist, including conflicting inferences to be drawn from certain evidence, as well as issues of credibility, all of which must be adjudicated by a jury.

Accordingly, it is hereby

ORDERED that the motion by Plaintiff The County of Orange (Mot. Seq. #4) is granted only with respect to the sixth and seventh causes of action against Defendant/Respondent Village of South Blooming Grove for violations of SEQRA and GML, and in all other respects the motion is DENIED; and it is further

ORDERED that the motion by Defendants RSBM Excavating, LLC and RSBM Management, LLC (Mot. Seq. #5) is granted only to the extent of dismissing the first cause of action for common law trespass, and in all other respects the motion is DENIED; and it is further

ORDERED that the motion by Defendants Sheri Torah, Inc. and Fort Worth Holdings LLC (Mot. Seq. #6) is granted only to the extent of dismissing the fourth cause of action for conversion, and in all other respects the motion is DENIED; and it is further

ORDERED that the motion by Defendant Mangin LLC (Mot. Seq. #7) is granted only to the extent of dismissing the fourth cause of action for conversion, and in all other respects the motion is DENIED; and it is further

ORDERED that the motion by Defendant Cioffi 1, Inc. d/b/a Cioffi Services (Mot. Seq. #8) is DENIED in its entirety; and it is further

ORDERED that the cross-motion by Defendant/Respondent Village of South Blooming Grove (Mot. Seq. #9) is granted only to the extent of dismissing the first and fourth causes of action for common law trespass and conversion, and in all other respects the motion is DENIED; and it is further

ORDERED that counsel for all parties shall appear in person for a trial scheduling conference on August 4, 2026 at 2:00 p.m.

The foregoing constitutes the Decision and Order of this Court.

Dated: July 6, 2026

E N T E R

HON. KYLE C. McGOVERN, J.S.C.

FOOTNOTES

1.   Defendant/Respondent Village of South Blooming Grove neglected to file its opposition papers to Plaintiff's motion (Mot. Seq. #4) within the Court's EF system, opting instead to file it only in connection with its own cross-motion (Mot. Seq. #9). Despite this, the Court recognizes the documents were intended to serve as both opposition to Plaintiff's motion as well as support for the cross-motion and has therefore considered the documents in connection with both motions.

2.   Doc 303 appears to be a duplicate of Doc 302.

3.   Shortly after commencement of the action and following expedited motion practice by Plaintiff for a temporary restraining order, the parties agreed and consented to a temporary restraining order by Stipulation dated January 31, 2023.

4.   The Ninth Cause of Action asserted in the SAC sought a permanent injunction, as the preliminary injunction previously sought had been resolved by the aforementioned Stipulation dated January 31, 2023.

5.   The Court rejects any attempt by Stern to characterize his dealings with Defendants, including Sheri Torah, regarding the Mangin Bypass as being done in his capacity "as a person in the community" and not on behalf of the Village. The position taken by the Village as to Stern's actions is specious and clearly intended to distance the Village from its participation in the Mangin Bypass project and the allegations set forth in the County's SAC.

6.   This survey conducted in December 2022 was submitted by the Village in support of the eminent domain proceeding it commenced by Notice of Public Hearing dated July 14, 2025, to take ownership of the Gonzaga Park property for the purpose of completing the Mangin Bypass. In response to the Village's eminent domain proceeding, the County filed a petition (County of Orange v. Village of South Blooming Grove, Index No.: EF009252-2025) seeking to permanently enjoin the Village from initiating or prosecuting any eminent domain action to acquire any portion of Gonzaga Park without explicit authorization from the New York State legislature, and to declare any such eminent domain action taken without explicit authorization from the legislature illegal and void ab initio. That petition was granted by this Court's Decision and Order dated January 23, 2026.

7.   According to Ewald's Affidavit, the County has a contract with Nearmap for use of its aerial photographs, and the ariel photographs used by Ewald were produced under contract between the County and Nearmap and maintained in the ordinary course of County business. In addition, the property boundary overlays on such aerial photographs are based on County and municipal tax maps which are also maintained in the ordinary course of business.

8.   AT&T maintained a Right Of Way along the Gonzaga Park border specifically for underground telecommunication lines along the described route and the road along the easement was reportedly strictly for the purpose of maintaining the underground telecommunication lines with necessary surface testing equipment and for keeping the ground clear of vegetation, with no other use implied in the agreement.

9.   Based upon the Village's acknowledged understanding of the municipal approvals required to construct the roadway through Gonzaga Park, the Court gives no weight or consideration to the Village's preposterous claim it was verbally given the "green light" by the County to construct the Mangin Bypass roadway through the parkland during an onsite meeting in October 2022.

10.   Ewald also attests the property boundary overlays on such aerial photographs are based on County and municipal tax maps, which are also maintained in the ordinary course of the County's business.

11.   The Village's papers reference an alleged environmental review conducted by Mangin and Gelb in 2019 in support of the Clovewood project, which review allegedly included a traffic study of the Mangin Bypass, suggesting no further environmental review was required. The Court rejects this suggestion and points to the Village's failure to submit a copy of the 2019 environmental review for consideration by the Court to determine its adequacy under SEQRA.

12.   Holtzer states RSBM did not actually perform any work on the Meisels property, but that it "staged equipment to perform work" which he claims explains why RSBM's excavator appears in the County's photographs.

13.   Counsel cites Phillips v. Sun Oil Co., 307 NY 328, 337 (1954) for the proposition that liability for another's trespass requires proof of active participation, direction, or control, claiming the case held a property owner was not liable for a contractor's trespass absent evidence of direction or control. However, the Court finds no such holding in this cited case that dismissed trespass claims where there was no evidence as to how gasoline moved from the defendant's premises to the plaintiff's premises.

14.   Here again, the Court finds no support for this proposition in the case cited by counsel as Rowe v. Great Atl. & Pac. Tea Co., 46 NY2d 62 (1978) does not discuss direct liability under RPAPL § 861.

15.   Cioffi also asks the Court to sua sponte dismiss the claim for trespass if the Court finds the County has failed to offer admissible evidence that Cioffi ever trespassed on County land.

Kyle C. McGovern, J.