ENGLERT v. RUSSELL LLC (2026)

Motion by defendants for (1) partial summary judgment on the issue of damages, and (2) to preclude the testimony of plaintiff's expert at trial on the issue of replacement cost damages; and cross-motion by plaintiff for leave to amend the complaint. Upon the papers in support of the motion (NYSCEF Doc. Nos. 246-267), the papers in opposition to the motion and in support of the cross-motion (NYSEF Doc. Nos. 271-272), the papers in opposition to the cross-motion and further support of the motion (NYSCEF Doc. No. 273) and the papers in reply on the cross-motion (NYSCEF Doc. No. 278), decision is rendered as follows.

The facts of this case are set forth in this court's decisions and orders entered September 30, 2024 and May 2, 2025. In brief, plaintiff and defendant Bolton Carmela, LLC (hereinafter “BCLLC”) are the owners of contiguous, improved parcels in the Town of Bolton, Warren County and, in mid-March 2021, plaintiff found that 34 trees had been felled on her property along its shared boundary with BCLLC's property. Plaintiff then commenced this action, alleging that BCLLC's principal, defendant Joseph Russell, had hired defendant Alex Maxam, Individually and Doing Business as Maxam's Landscaping, to fell the trees, asserting causes of action in trespass and negligence, and seeking damages as allowed under RPAPL 861 (1), to wit, $250 per tree, treble the stumpage value of each tree and the value of “permanent and substantial damage caused to the land” by the trees' removal. Among the damages sought in the “permanent and substantial damage caused to the land” category, plaintiff seeks damages for the costs to remediate drainage and erosion issues that she alleges were “a result of [the alleged] violation,” and the replacement value of the trees (RPAPL 861 [1]). Plaintiff has submitted a “tree replacement appraisal report” purportedly prepared by a Richard St. Armand of Saratoga Land Management Corporation on May 8, 2024 that concludes, based on the “trunk formula method,” that the replacement value of the trees is a staggering $465,000.¹ Defendants now seek partial summary judgment declaring that the cost to replace the trees is not among the damages allowed under RPAPL 861 (1) and precluding St. Armand from testifying to his conclusions on that issue.

Plaintiff's motion asks this court to “revisit its earlier Decisions and Orders denying [her] motion to amend” the complaint to include a claim for punitive damages. In essence, plaintiff seeks reargument of the court's May 2, 2025 decision and order. Insofar as a jury trial in this action has long been scheduled to commence on February 2, 2026 and the motion and cross-motion were interposed on December 5 and 16, 2025, respectively, the parties agreed that the court should address the motion and cross-motion in the manner of motions in limine.

Defendants' claims present a question of statutory construction, which is a question of law for resolution by the courts and is thus an issue appropriate for summary judgment (see Mills v. Chauvin, 103 A.D.3d 1041, 1045, 962 N.Y.S.2d 412 [3d Dept 2013]; People v. Spencer, 89 A.D.3d 1156, 1158, 932 N.Y.S.2d 233 [3d Dept 2011], citing Bush v. Delaware, Lackawanna & W. R.R. Co., 166 N.Y. 210, 226, 59 N.E. 838 [1901]). This court finds defendants' position that tree replacement costs are not recoverable under the statute to be compelling and in line with common principles of statutory construction. However, in Fair Chase Holdings II, LLC v County of Dutchess (165 A.D.3d 1237, 87 N.Y.S.3d 602 [2d Dept 2018]), the Appellate Division, Second Department, held to the contrary, at least implicitly. There being no precedent on the question from the Third Department, this court believes itself bound by the Second Department's determination (see Mountain View Coach Lines, Inc. v. Storms, 102 A.D.2d 663, 664-665, 476 N.Y.S.2d 918 [2d Dept 1984]). That said, the costs recoverable in Fair Chase were far more limited than those sought here under the “trunk formula method,” which purports to capture the value of the tree for such things as aesthetics, visual/privacy buffers, erosion control, snow deposition control, wind breakage and dust reduction, whereas the Court in Fair Chase sanctioned recovery of only “the retail price of replacement trees ․, delivery, soil amendment, planting and mulching” (Fair Chase Holdings II, LLC v. County of Dutchess, 50 Misc 3d 371, 379, 22 N.Y.S.3d 287 [Sup Ct, Dutchess County 2015] [replacement costs included in stumpage value, not permanent and substantial damage to land], revd 102 A.D.2d at 664-665, 476 N.Y.S.2d 918, supra [plaintiff not required to seek replacement costs as part of stumpage value]). The court finds that an award of damages upon these other bases of recovery is not compelled by Fair Chase and not intended to be included in “permanent and substantial damage caused to the land” (RPAPL 861 [1]). Thus, the court concludes, the trunk formula method is not a permissible means of determining the cost to replace removed trees under the statute. Moreover, the court finds that the figure arrived at under the trunk formula method—being the lion's share of the value of plaintiff's entire property—is unreasonable.² A discussion of these holdings follows.

RPAPL 861 (1) provides:

“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 another or on the common or other land of a city, village, town or county, or damages the land in the course thereof, an action may be maintained against such person for treble the stumpage value of the tree or timber or two hundred fifty dollars per tree, or both and for any permanent and substantial damage caused to the land or the improvements thereon as a result of such violation. 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.”

RPAPL 861 (3) provides, in turn:

“For the purposes of this section “stumpage value” shall mean the current fair market value of a tree as it stands prior to the time of sale, cutting, or removal. Stumpage value shall be determined by one or more of the following methods: the sale price of the tree in an arm's-length sale, a review of solicited bids, the stumpage price report prepared by the department of environmental conservation, comparison with like sales on trees on state or private lands, or other appropriate means to assure that a fair market value is established within an acceptable range based on the appropriate geographic area.”3

Defendants argue that replacement costs are not recoverable under the statute because they are not an appropriate measure of stumpage value and the statute does not otherwise provide for recovery of replacement costs. Indeed, controlling precedent from the Third Department holds that stumpage value does not include replacement costs (see Tverskoy v. Ramaswami, 83 A.D.3d 1195, 1197-1198, 920 N.Y.S.2d 803 [3d Dept 2011]). However, plaintiff's claim is, as noted, that replacement costs are recoverable as a component of permanent and substantial damage to the land.⁴ Defendants counter that the statute, as it is to be read under common principles of statutory construction, does not admit of an award of costs to replace the trees, and the court is inclined to agree.

When construing a statute, the courts are concerned with effectuating the intent of the Legislature, the best indicator of which is the statute's plain language (see Avella v. City of NY, 29 N.Y.3d 425, 434, 58 N.Y.S.3d 236, 80 N.E.3d 982 [2017]). “ ‘[A] statute ․ must be construed as a whole and ․ its various sections must be considered together and with reference to each other’ ” (id., quoting Matter of New York County Lawyers' Assn. v. Bloomberg, 19 N.Y.3d 712, 721, 955 N.Y.S.2d 835, 979 N.E.2d 1162 [2012]). “Where ‘the Legislature uses different terms in various parts of a statute, courts may reasonably infer that different concepts are intended’ ” (Level 3 Communications v. Clinton County, 144 A.D.3d 115, 119, 977 N.Y.S.2d 797 [3d Dept 2016], lv denied 29 N.Y.3d 918, 2017 WL 4015616 [2017], quoting Rangolan v. County of Nassau, 96 N.Y.2d 42, 47, 725 N.Y.S.2d 611, 749 N.E.2d 178 [2001]). “ ‘[W]here the Legislature enacts a specific provision directed at a particular class, and a more general provision in the same statute which might appear to encompass that class, the specific provision will be applied’ ” (Level 3 Communications, 144 A.D.3d at 120, 40 N.Y.S.3d 227, quoting Matter of Robert Bruce McLane Assoc. v. Urbach, 232 A.D.2d 826, 828, 649 N.Y.S.2d 487 [3d Dept 1996] [internal quotation marks and citation omitted]; see McKinney's Cons. Laws of NY, Book 1, Statutes § 238). “[A] court cannot by implication supply in a statute a provision that it is reasonable to suppose the Legislature intended to omit” (Matzell v. Annucci, 183 A.D.3d 1, 6, 121 N.Y.S.3d 153 [3d Dept 2020]; see McKinney's Cons. Laws of NY, Book 1, Statutes § 74; Pajak v. Pajak, 56 N.Y.2d 394, 396-397, 452 N.Y.S.2d 381, 437 N.E.2d 1138 [1982]; Danskammer Energy, LLC v. New York State Dept. of Envtl. Conservation, 76 Misc 3d 196, 249, 173 N.Y.S.3d 134 [Sup Ct, Orange County 2022]).

While it is true that “land” may generally be considered to include that which grows on it (see Black's Law Dictionary [12th ed 2024], land; Merriam-Webster.com Dictionary, land [https://www.merriam-webster.com/dictionary/land]), here, the Legislature has specifically provided that one's entitlement to recovery when one's tree is unlawfully felled is treble stumpage value and/or $250 per tree (see RPAPL 861 [1]). It then devotes an entire subdivision to the various ways in which stumpage value might be established (see RPAPL 861 [3]; Tverskoy, 83 A.D.3d at 1197-1198, 920 N.Y.S.2d 803). Separate and apart from these measures of damages, the statute permits recovery for permanent and substantial damage to the land that occurs in the course of cutting down or removing the tree (see RPAPL 861 [1]). Nowhere in the statute is the cost to replace the unlawfully felled tree mentioned, and the plain language of the statute distinguishes the cutting, removal, injury or destruction of a tree from the damage that may be caused to the land thereby (see RPAPL 861 [1]). The structure of this statute and the Legislature's choice to specifically address damages for the loss of a tree without including replacement costs compels the conclusion that the Legislature intended to exclude that measure of damages as pertains to the loss of a tree and militates against the inclusion of other damages related specifically to the loss of a tree amidst those recoverable for the more general injury of damage to land (see McKinney's Cons. Laws of NY, Book 1, Statutes §§ 74, 238; Matzell v. Annucci, 183 A.D.3d at 6, 121 N.Y.S.3d 153; Level 3 Communications, 114 A.D.3d at 119-120, 977 N.Y.S.2d 797).⁵

While the court is bound to permit plaintiff to seek replacement costs as a component of permanent and substantial damage to the land under Fair Chase, all that was allowed in that case was “the retail price of replacement trees ․, delivery, soil amendment, planting and mulching,” the court is bound by that case to permit no more than that, and the above principles of statutory construction compel the conclusion that the Legislature did not intend to allow recovery for such ethereal matters as aesthetics, visual/privacy buffers, erosion control, snow deposition control, wind breakage and dust reduction (Fair Chase, 50 Misc 3d at 379; see McKinney's Cons. Laws of NY, Book 1, Statutes §§ 74, 238; Matzell v. Annucci, 183 A.D.3d at 6, 121 N.Y.S.3d 153; Level 3 Communications, 114 A.D.3d at 119-120, 977 N.Y.S.2d 797; Fair Chase, 102 A.D.2d at 664-665, 476 N.Y.S.2d 918).⁶ To the extent that a replacement cost appraisal using the trunk formula method accounts for the supposed values of these things, it is not to be permitted.

Other grounds to disfavor the trunk formula method as a means of establishing damages under RPAPL 861 (1) exist. First, the statute allows for only those reparations that would “reasonably restore the lands affected by the violation” (RPAPL 861 [1]). The court finds that plaintiff's employing a valuation method for the loss of 34 trees on a forested portion of plaintiff's property that results in a damages figure nearly equal to the full market value of the entire property is not reasonable, particularly where there is nothing in the record to show that plaintiff's property was devalued to that extent by the removal of the trees.

Moreover, the court is bound to avoid construing a statute in such a way as would yield objectionable, unreasonable, absurd or unjust results (see McKinney's Cons. Laws of NY, Book 1, Statutes §§ 141, 143, 145, 146; DeTroia v. Schweitzer, 87 N.Y.2d 338, 342, 639 N.Y.S.2d 299, 662 N.E.2d 779 [1996]). Construing RPAPL 861 (1) so as to permit recovery for lost aesthetics, visual/privacy buffers, erosion control, snow deposition control, wind breakage, dust reduction and the like, and thereby inflate the value of lost trees to so great an extent is absurd, unjust, unreasonable for the reasons stated above and, therefore, objectionable. Defendants are thus granted partial summary judgment to the extent stated herein, and plaintiff is precluded from calling St. Armand at trial to testify about his trunk formula method appraisal of the cost to replace plaintiff's trees, except to the extent that such testimony would address the retail price of replacement trees, the costs to deliver, plant and mulch them, and the cost of any soil amendment necessary to these tasks.

Plaintiff's cross-motion for reargument of her prior motion for leave to amend her complaint is denied as untimely (see CPLR 2221 [d] [3]). Arguments not specifically addressed have been examined and determined to be without merit. Based upon the foregoing it is hereby

ORDERED that defendants' motion for partial summary judgment is granted in part; plaintiff may pursue replacement cost damages only to the extent that they are comprised of only the retail price of replacement trees, the costs to deliver, plant and mulch them, and the cost of any soil amendment necessary to these tasks; and the motion is otherwise denied; and it is further

ORDERED that defendants' motion for preclusion of the testimony of Richard St. Armand at trial is granted to the extent stated herein and otherwise denied; and it is further

ORDERED that plaintiff's cross-motion is denied; and it is further

ORDERED that defendants' letter application, dated January 12, 2026, for adjournment of the trial and a conference to select a new trial date is denied; to the extent that plaintiff's letter to the court seeks bifurcation of the trial and a conference with the court, it is denied; and the jury trial shall go forward on all issues as scheduled on February 2, 2026 at 9:30 a.m.

The within constitutes the decision and order of this court.

FOOTNOTES

1.   St. Armand's identity and the fact that he is a forester are gleaned from plaintiff's supplemental bill of particulars (NYSCEF Doc. No. 261). The report itself (NYSCEF Doc. No. 262) does not mention his name. Nor does it describe what “Saratoga Land Management Corporation” is or what it does. St. Armand's qualifications to render the conclusions reflected in the report are not in the report and are not otherwise found in the record. Nor are there averments in the report that the conclusions reached therein are accurate to a reasonable degree of professional or scientific certainty.

2.   Defendants submitted a retrospective appraisal report valuing plaintiff's property at $520,000 as of January 17, 2021, the first date on which plaintiff can say that her trees were missing. Plaintiff has not had the property appraised.

3.   RPAPL 861 (2) provides a defense to the imposition of treble damages that is not at issue or otherwise implicated on the motion or cross-motion.

4.   The court does not read Tverskoy to go so far as to affirmatively hold that replacement costs are recoverable as a component of permanent and substantial damage to the land. Nor does it clearly state whether replacement cost damages may appropriately be determined via the trunk formula method. Its utility in the resolution of this issue is thus limited. Western NY Land Conservancy, Inc. v. Cullen 66 A.D.3d 1461, 886 N.Y.S.2d 303 (4th Dept 2009)) is similarly unhelpful. Though the Court in Cullen sanctioned recovery of “restoration costs” awarded after a trial—which apparently followed plaintiff's election of that remedy in lieu of treble stumpage value (see also Tverskoy, 83 A.D.3d at 1196-1197, 920 N.Y.S.2d 803; Fair Chase, 165 A.D.3d at 1238-1239, 87 N.Y.S.3d 602; Fair Chase, 50 Misc 3d at 376, 22 N.Y.S.3d 287)—there is no evidence that the Court was confronted with the question that is before this court. And in any event, it cannot be gleaned from the Cullen decision whether the “restoration costs” awarded by the jury included the replacement of trees, since the damage to the land involved there included defendant's laying down stone to make a road and excavating around pond to expand it; or, if the “restoration costs” did include tree replacement, how much of the figure awarded was specifically for tree replacement and what considerations may have gone into that award. Notably, the trunk formula method was not mentioned in the decision.

5.   To the extent that the court's observations about the statute that underpin this conclusion may be viewed as inconclusive of the issue, they at least render the meaning of “land” as used in RPAPL 861 (1) ambiguous under the circumstances, making resort to legislative history appropriate, and the court notes that the Senate introducer's memorandum refers to treble stumpage value and $250 per tree as “[t]he maximum civil penalty” for the unlawful taking of timber (Senate Introducer's Mem in Support of 2023 Senate Bill S1783A, enacted as L 2003, ch 602 [bill jacket at 7]).

6.   The court notes that plaintiff's tree replacement appraisal report does not make clear how any of these things were measured or quantified.

Martin D. Auffredou, J.