MORRISON v. Blaine Melnick and Blaine Melnick Logging Co., Defendants-Respondents-Appellants, et al., Defendant.

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Supreme Court, Appellate Division, Fourth Department, New York.

Howard E. MORRISON and Sally A. Morrison, Plaintiffs-Respondents, v. WESCOR FOREST PRODUCTS CO., Defendant-Appellant-Respondent, Blaine Melnick and Blaine Melnick Logging Co., Defendants-Respondents-Appellants, et al., Defendant.

Decided: April 28, 2006

PRESENT:  PIGOTT, JR., P.J., SCUDDER, KEHOE, PINE, AND HAYES, JJ. Goodell & Goodell, Jamestown (Andrew W. Goodell of Counsel), for Defendant-Appellant-Respondent. Personius Melber LLP, Buffalo (Scott R. Hapeman of Counsel), for Defendants-Respondents-Appellants. Burgett & Robbins, Jamestown (Dalton J. Burgett of Counsel), for Plaintiffs-Respondents.

Plaintiffs commenced this action alleging, inter alia, that defendants wrongfully entered their property and cut valuable timber in violation of RPAPL former 861.   Supreme Court properly granted that part of plaintiffs' cross motion for partial summary judgment on liability against defendant Blaine Melnick, doing business as Blaine Melnick Logging Co. (Melnick), incorrectly sued separately as Blaine Melnick and Blaine Melnick Logging Co. Plaintiffs established as a matter of law that Melnick entered their land without permission and cut timber, and Melnick failed to raise a triable issue of fact (cf. Arnott v. Franzino, 302 A.D.2d 415, 754 N.Y.S.2d 671;  see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).

We further conclude that the court properly denied that part of the motion of defendant Wescor Forest Products Co. for summary judgment dismissing the complaint against it.   The record establishes that there are issues of fact whether Wescor “directed the trespass or [whether] such trespass was necessary to complete the contract” (Axtell v. Kurey, 222 A.D.2d 804, 805, 634 N.Y.S.2d 847, lv. denied 88 N.Y.2d 802, 644 N.Y.S.2d 688, 667 N.E.2d 338;  see Gracey v. Van Camp, 299 A.D.2d 837, 838, 750 N.Y.S.2d 400). Contrary to the further contentions of Melnick and Wescor, the court properly denied those parts of their respective motions for summary judgment dismissing the complaint against them insofar as plaintiffs seek treble damages pursuant to RPAPL former 861.   There are issues of fact whether the alleged conduct of Melnick and Wescor “was ‘casual and involuntary,’ in which case [they] would not be liable for treble damages” (Nickerson v. Genuine Hardwoods, 4 A.D.3d 842, 843, 771 N.Y.S.2d 762, quoting RPAPL former 861[2][a];  see Bass v. Catucci, 196 A.D.2d 802, 602 N.Y.S.2d 22).

We have reviewed the remaining contentions of Melnick and Wescor and conclude that they are without merit.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: