        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

874
CA 10-01586
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, GREEN, AND GORSKI, JJ.


RICKY D. WEST, ROBERT H. WEST, ROXY G. BUSH,
PAMELA J. JUDD, JODI M. (WHITE) LYNCH,
CHARLES K. WEST, MICHAEL WEST AND JAMIE-SUE
WEST, PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

MARK HOGAN AND ELIZABETH HOGAN,
DEFENDANTS-APPELLANTS.
-------------------------------------------
MARK HOGAN AND ELIZABETH HOGAN, THIRD-PARTY
PLAINTIFFS-APPELLANTS,

                    V

DAVID VANDEWATER, THIRD-PARTY
DEFENDANT-RESPONDENT.


COLUCCI & GALLAHER, P.C., BUFFALO (PAUL G. JOYCE OF COUNSEL), FOR
DEFENDANTS-APPELLANTS AND THIRD-PARTY PLAINTIFFS-APPELLANTS.

SLYE & BURROWS, WATERTOWN (ROBERT J. SLYE OF COUNSEL), FOR THIRD-PARTY
DEFENDANT-RESPONDENT.

CONBOY MCKAY BACHMAN & KENDALL, LLP, WATERTOWN (PETER L. WALTON OF
COUNSEL), FOR PLAINTIFFS-RESPONDENTS.


     Appeal from an order and judgment (one paper) of the Supreme
Court, Lewis County (Charles C. Merrell, A.J.), entered April 7, 2010.
The order and judgment, inter alia, determined the title to certain
real property upon a jury verdict.

     It is hereby ORDERED that the order and judgment so appealed from
is modified on the law by vacating the award of punitive damages and
as modified the order and judgment is affirmed without costs, and a
new trial is granted on punitive damages only unless plaintiffs,
within 30 days of service of a copy of the order of this Court with
notice of entry, stipulate to reduce the award of punitive damages to
$15,000, in which event the order and judgment is modified accordingly
and as modified the order and judgment is affirmed without costs.

     Memorandum: Plaintiffs commenced this action seeking, inter
alia, a determination that they acquired title to certain property by
adverse possession. Plaintiffs own lot 8 on Hiawatha Lake I in the
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                                                         CA 10-01586

Town of Grieg (Town), and that lot is improved by a camp that was
built in approximately 1971. In October 2004 defendants-third-party
plaintiffs (defendants) purchased lot 7, which was a vacant lot to the
east of lot 8, and they commissioned a survey of the two lots.
According to the property line that is depicted in that survey, the
east side of plaintiffs’ camp on lot 8 encroached on lot 7 by
approximately 2½ feet. After purchasing lot 7, Mark Hogan (defendant)
began asserting his rights to all of the property to the east of the
property line depicted in the survey. Plaintiffs thereafter
commissioned their own survey of the two lots and, according to that
survey, the property line between lots 7 and 8 was approximately 10 to
12 feet to the east of the property line depicted in defendants’
survey. Plaintiffs alleged that they acquired title to the area that
fell within the property lines as depicted in the two surveys
(hereafter, disputed area).

     Supreme Court properly granted that part of plaintiffs’ motion
for a directed verdict on the issue of adverse possession inasmuch as
there was “ ‘no rational process by which the fact trier could base a
finding in favor of the nonmoving party’ ” (Bennice v Randall, 71 AD3d
1454, 1455, quoting Szczerbiak v Pilat, 90 NY2d 553, 556). Plaintiffs
established by clear and convincing evidence that their possession of
the disputed area was “(1) hostile and under claim of right; (2)
actual; (3) open and notorious; (4) exclusive; and (5) continuous for
the required period . . . [of] at least 10 years” (Walling v
Przybylo, 7 NY3d 228, 232). In addition, plaintiffs established that
the disputed area was “usually cultivated or improved” pursuant to
RPAPL 522 former (1), which was in effect when plaintiffs commenced
this action. “The type of cultivation or improvement sufficient under
the statute will vary with the character, condition, location and
potential uses for the property” (City of Tonawanda v Ellicott Cr.
Homeowners Assn., 86 AD2d 118, 122-123, appeal dismissed 58 NY2d 824;
see Ray v Beacon Hudson Mtn. Corp., 88 NY2d 154, 160). Plaintiffs,
whose parents purchased lot 8 in 1983, and other witnesses testified
that plaintiffs mowed and raked the disputed area, placed lawn chairs
on it, and used it to access the hatchway doors that were installed in
1988 on the east side of the camp that led to the furnace, hot water
heater and shower. Plaintiffs built a memorial for their father on
the disputed area in 1992, consisting of a plaque fixed to a rock on a
raised flower bed with a hand water pump next to it. Plaintiffs also
placed a clothesline and their boats on the disputed area, and the
septic system for lot 8 was in the middle of that area. Based on
those facts, we conclude that plaintiffs usually cultivated or
improved the disputed area (see Hammond v Baker, 81 AD3d 1288, 1289-
1290; West Middlebury Baptist Church v Koester, 50 AD3d 1494, 1495).

     We reject defendants’ contention that plaintiffs failed to
establish the required elements of hostility, claim of right or
exclusivity. The evidence presented at trial established that
plaintiffs and their predecessors used the disputed area exclusively
from the time the camp was constructed in 1971 until defendants
commissioned the survey in 2004. If all the other elements of adverse
possession are established, it is presumed that the use was hostile
and under a claim of right (see DeRosa v DeRosa, 58 AD3d 794, 796, lv
                                 -3-                           874
                                                         CA 10-01586

denied 12 NY3d 710; Allen v Mastrianni, 2 AD3d 1023, 1024; Parsons v
Hollingsworth, 259 AD2d 1054). “By definition, a claim of right is
adverse to the title owner[s] and also in opposition to the rights of
the true owner[s]” (Walling, 7 NY3d at 232). Plaintiffs established
that they and their predecessors used the disputed area openly and
notoriously and that they and their predecessors had been in actual,
exclusive, and continuous possession of the disputed area since 1971.
Thus, a presumption of hostility under a claim of right arose, and
defendants failed to rebut that presumption (see Hammond, 81 AD3d at
1289). The evidence submitted by defendants regarding events that
occurred in 1998 is of no moment inasmuch as plaintiffs had already
acquired the property by adverse possession at that time.

     We reject defendants’ further contention that the court erred in
awarding plaintiffs punitive damages. “In order to recover punitive
damages for trespass on real property, plaintiffs have the burden of
proving that the trespasser acted with actual malice involving an
intentional wrongdoing, or that such conduct amounted to a wanton,
willful or reckless disregard of plaintiffs’ rights” (Ligo v
Gerould, 244 AD2d 852, 853; see Litwin v Town of Huntington, 248 AD2d
361). Although defendants’ survey demonstrated that the disputed area
was located within lot 7, it is undisputed that defendant thereafter
granted plaintiffs permission to “continue to use th[at] portion of
[their] camp on [his] property.” Moreover, defendant admitted that he
had held a lease option on lot 7 since 1996, and thus it would be
reasonable to assume that he was aware of the fact that plaintiffs had
exercised rights of ownership over the disputed area since that time.
Defendant was also aware of the fact that plaintiffs contested his
ownership over the disputed property inasmuch as the Town Code
Enforcement Officer noted the “ongoing dispute” between the parties in
a letter to defendant in August 2005. Despite granting plaintiffs
permission to use their camp and knowing that they contested his
ownership of the disputed area, defendant erected a fence that abutted
plaintiffs’ camp and prevented plaintiffs from accessing their cellar
through the hatchway doors that were located in the disputed area.
Defendant also padlocked those hatchway doors, moved and demolished
portions of the memorial to plaintiffs’ father and flipped over boats
owned by plaintiffs that were stored in the disputed area.

     Once the court determined that the property was owned by
plaintiffs by reason of adverse possession, defendant was responsible
for any damages that he caused to plaintiffs’ property by reason of
his trespass, and the jury properly awarded plaintiffs compensatory
damages. It is undisputed that punitive damages may also be awarded
for actions based on real property trespass (see e.g. Western N.Y.
Land Conservancy, Inc. v Cullen, 66 AD3d 1461, 1463, appeal dismissed
13 NY3d 904, lv denied 14 NY3d 705, rearg denied 15 NY3d 746; Ligo,
244 AD2d at 853), but we agree with our dissenting colleagues that
there does not appear to be any case awarding punitive damages where,
as here, the trespass occurred as a result of adverse possession. We
note, however, that there is also no case prohibiting the award of
punitive damages in such a situation, and we conclude that this is an
“exceptional” case where punitive damages are appropriate (Ross v
Louise Wise Servs., Inc., 8 NY3d 478, 489; cf. Litwin, 248 AD2d 361).
                                 -4-                           874
                                                         CA 10-01586

We recognize that, at the time defendant committed his malicious acts,
he possessed a survey indicating that he owned the disputed area.
Nevertheless, defendant was aware that there was a dispute over the
property line, and he granted plaintiffs permission to continue to use
their camp. Despite those facts, defendant proceeded to destroy
plaintiffs’ property, including desecrating a memorial, and the
evidence strongly suggests that he plugged plaintiffs’ vent pipe,
rendering their toilet unusable, and entered their cellar to cut and
remove the new vent pipe that plaintiffs subsequently installed.
Defendant’s conduct was intentional, “ ‘evince[d] a high degree of
moral turpitude and demonstrate[d] such wanton dishonesty as to imply
a criminal indifference to [his] civil obligations’ ” (Ross, 8 NY3d at
489). At the very least, it was conduct that “amounted to a
wanton, willful or reckless disregard of plaintiffs’ rights”
(Ligo, 244 AD2d at 853).

     We conclude, however, that the award of $200,000 in punitive
damages was “so grossly excessive ‘as to show by its very exorbitancy
that it was actuated by passion’ ” (Nardelli v Stamberg, 44 NY2d 500,
504). Based on awards in other trespass cases, we conclude that
$15,000 is the amount that “ ‘bears a reasonable relation to the harm
done and the flagrancy of the conduct causing it’ ” (Western N.Y. Land
Conservancy, Inc., 66 AD3d at 1464; see e.g. Vacca v Valerino, 16 AD3d
1159, 1160; Ligo, 244 AD2d at 853). We therefore modify the order and
judgment by vacating the award of punitive damages, and we grant a new
trial on punitive damages only unless plaintiffs, within 30 days of
service of a copy of the order of this Court with notice of entry,
stipulate to reduce that award to $15,000, in which event the order
and judgment is modified accordingly.

     We have considered defendants’ remaining contentions and conclude
that they are without merit.

     All concur except CENTRA and FAHEY, JJ., who dissent in part and
vote to modify in accordance with the following Memorandum: We
respectfully dissent in part and would modify the order and judgment
by vacating the award of punitive damages. Plaintiffs and defendants-
third-party plaintiffs (defendants) own adjoining properties on
Hiawatha Lake I in the Town of Grieg. Plaintiffs’ lot is improved by
a camp built in approximately 1971, and defendants’ lot is vacant.
When defendants purchased their lot in October 2004, they commissioned
a survey that established that the east side of the camp owned by
plaintiffs encroached on defendants’ lot by approximately 2½ feet.
According to plaintiffs, they acquired title to the disputed area,
which extends between 10 and 12 feet to the east of their camp, by
adverse possession. Although Mark Hogan (defendant) began asserting
his right to the disputed area shortly after defendants purchased
their lot, plaintiffs waited until October 2006 to commence this
action seeking, inter alia, a determination that they acquired title
to the disputed area by adverse possession.

     We disagree with the majority’s conclusion that punitive damages
are appropriate in this case. “In order to recover punitive damages
for trespass on real property, plaintiffs have the burden of proving
                                 -5-                          874
                                                        CA 10-01586

that the trespasser acted with actual malice involving an intentional
wrongdoing, or that such conduct amounted to a wanton, willful or
reckless disregard of plaintiffs’ rights” (Ligo v Gerould, 244 AD2d
852, 853; see Litwin v Town of Huntington, 248 AD2d 361). In our
view, this is not an “exceptional” case where punitive damages are
appropriate (Ross v Louise Wise Servs., Inc., 8 NY3d 478, 489; see
Litwin, 248 AD2d 361). The survey that defendants commissioned gave
defendant a reasonable and factual basis to believe that he owned the
disputed area. This is not a case where the trespasser knew that he
or she had no ownership claim over the property (cf. Western N.Y. Land
Conservancy, Inc. v Cullen, 66 AD3d 1461, 1463, appeal dismissed 13
NY3d 904, lv denied 14 NY3d 705, rearg denied 15 NY3d 746; Ligo, 244
AD2d 852). Notably, once plaintiffs commenced this action and placed
defendants on notice that they were asserting title to the disputed
area by adverse possession, there were no further incidents of
trespass by defendant. We therefore agree with defendants that the
award of punitive damages should be vacated.




Entered:   October 7, 2011                     Patricia L. Morgan
                                               Clerk of the Court
