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

1317
CA 15-00781
PRESENT: SMITH, J.P., PERADOTTO, CARNI, LINDLEY, AND WHALEN, JJ.


TIMOTHY C. LONG, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

GENE C. TINGUE, DEFENDANT-RESPONDENT.


WARD & KUTZUBA, ARCADE (ROBERT D. STRASSEL OF COUNSEL), FOR
PLAINTIFF-APPELLANT.


     Appeal from a judgment of the Supreme Court, Cattaraugus County
(Michael L. Nenno, A.J.), entered February 13, 2015. The judgment
awarded plaintiff money damages.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by vacating the damages award except
with respect to the $510 for “Damage to Realty,” and as modified the
judgment is affirmed without costs, and the matter is remitted to
Supreme Court, Cattaraugus County, to determine the amount of damages
to be awarded pursuant to RPAPL 861 (1) in accordance with the
following memorandum: Plaintiff commenced this RPAPL 861 action
seeking damages for, inter alia, defendant’s cutting and removal of
trees from a parcel of plaintiff’s property. The complaint sought,
among other damages, treble the stumpage value of the trees, as well
as $250 per tree and damages for permanent and substantial damage to
the land. Plaintiff appeals from a judgment awarding him the stumpage
value of the trees and $510 for “Damage to Realty.”

     We conclude that Supreme Court properly awarded plaintiff the
$510 for the “Damage to Realty,” but we agree with plaintiff that the
court erred in limiting the remainder of his damages to the stumpage
value of the trees. “Damages pursuant to RPAPL may be awarded ‘equal
to treble the stumpage value (as defined) of the trees or timber, or
$250 per tree, or both such treble value and amount per tree, and for
any permanent and substantial damage to land or improvements caused by
such violation’ ” (Vanderwerken v Bellinger, 72 AD3d 1473, 1476,
quoting Winter and Loeb, Practice Commentaries, McKinney’s Cons Laws
of NY, Book 49½, RPAPL 861, at 439). Plaintiff presented evidence of
the damages to the land and the stumpage value of the trees (cf. id.
at 1473-1474; Western N.Y. Land Conservancy, Inc. v Cullen, 66 AD3d
1461, 1464, appeal dismissed 13 NY3d 904, lv denied 14 NY3d 705), and
the court awarded him that amount. The statute, however, provides
that plaintiff is entitled to treble the stumpage value, or $250 per
tree, or both (RPAPL 861 [1]), in addition to “permanent . . . damage
to the land.” We therefore modify the judgment by vacating the
                                 -2-                          1317
                                                         CA 15-00781

damages award except for the award of $510 for the “Damage to Realty,”
and we remit the matter to Supreme Court for a determination whether
plaintiff is also entitled to treble the stumpage value, $250 per
tree, or both (RPAPL 861 [1]).




Entered:   December 23, 2015                    Frances E. Cafarell
                                                Clerk of the Court
