                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: December 10, 2015                   520367
________________________________

DENNIS HALSTEAD et al.,
                    Appellants,
      v                                     MEMORANDUM AND ORDER

BRAD FOURNIA et al.,
                    Respondents.
________________________________


Calendar Date:   October 16, 2015

Before:   McCarthy, J.P., Rose, Lynch and Devine, JJ.

                             __________


      E. Stewart Jones Hacker & Murphy, LLP, Latham (John F.
Harwick of counsel), for appellants.

      Powers & Santola, LLP, Albany (Michael J. Hutter of
counsel), for respondents.

                             __________


Devine, J.

      Appeal from that part of an order of the Supreme Court
(Muller, J.), entered July 29, 2014 in Clinton County, which
partially denied plaintiffs' motion for summary judgment.

      Defendant John Jamison contracted with defendant Brad
Fournia to cut timber on real property in the Town of Saranac,
Clinton County that is owned by Jamison and his wife. Jamison
showed Fournia an old line of surveying ribbons that purportedly
marked the property boundary with land owned by plaintiffs. The
ribbons did not mark the actual property boundary, which resulted
in Fournia cutting and removing 488 trees on plaintiffs'
property.
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      Plaintiffs thereafter commenced this action and asserted
various claims related to the removal of the timber. Following
joinder of issue and discovery, plaintiffs moved for summary
judgment. Supreme Court granted summary judgment to plaintiffs
on the issue of liability, but found that questions of fact
required a trial on the issue of damages. Plaintiffs appeal from
that part of the order declining to grant summary judgment on the
issue of damages.

      We affirm, albeit for reasons different than those advanced
by Supreme Court. Defendants concede that they removed timber
from plaintiffs' property without permission to do so, rendering
them liable (see RPAPL 861; Jones v Castlerick, LLC, 128 AD3d
1153, 1154 [2015]). Supreme Court found questions of fact with
regard to whether defendants "had good cause to believe that
[they] had a legal right to cut plaintiffs' trees" (Fernandes v
Morgan, 95 AD3d 1626, 1628 [2012]). Plaintiffs did not dispute
on appeal – and conceded at oral argument – that defendants
believed in good faith that they were entitled to remove the
trees. In any event, the demonstration by a trespasser of a
"good faith belief in a legal right to harvest timber does not
absolve that person from all liability under RPAPL 861, but
merely saves him or her from having to pay the plaintiff treble
damages" as measured by the stumpage value of the trees removed
(id.; see RPAPL 861). Plaintiffs submitted proof as to the
stumpage value of the trees, but made clear that they were
electing to seek statutory damages of $250 per tree that are
available in any successful timber trespass claim (see RPAPL 861
[1], [2]; Fernandes v Morgan, 95 AD3d at 1628; Vanderwerken v
Bellinger, 72 AD3d 1473, 1476 [2010]).

      Defendants assert that damages of $250 per tree are not
mandatory, and that RPAPL 861 affords discretion to Supreme Court
to award a lesser amount of statutory damages. To effectuate the
intent of the Legislature in enacting RPAPL 861, we look to the
language of the statute, mindful that "[w]hen its language is
clear and unambiguous, it should be construed so as to give
effect to the plain meaning of its words" (People ex rel. Harris
v Sullivan, 74 NY2d 305, 309 [1989]; see Matter of Liberius v New
York City Health & Hosps. Corp., 129 AD3d 1170, 1171 [2015]).
The statute unambiguously directs that defendants "shall be
                              -3-                520367

liable for the stumpage value or [$250] per tree, or both," and
gives no indication that a lesser amount of statutory damages per
tree may be awarded (RPAPL 861 [2]). That reading of the
statutory language is confirmed by the legislative history of
RPAPL 861, which was enacted in 2003 in an effort to deter the
illegal taking of timber by increasing the potential damages for
that activity (see Senate Introducer's Mem in Support, Bill
Jacket, L 2003, ch 602, at 7; Mem of Dept of Envtl Conservation,
Bill Jacket, L 2003, ch 602, at 14). The legislation was
understood, in line with that intent, to "provid[e] for more
suitable fines of at least $250 per tree" (Mem of Counsel for St
Off of Parks, Recreation and Historic Preservation, Bill Jacket,
L 2003, ch 602, at 21 [emphasis added]). Statutory damages of
$250 per tree, which cannot be reduced, amounts to $122,000 given
the undisputed fact that 488 trees were removed.

      Plaintiffs have accordingly demonstrated that they are
entitled to $122,000 under one measure of damages, but that does
not end the matter. Supreme Court is not obliged to award
statutory damages and is entrusted with the discretion to award
"the stumpage value or [$250] per tree, or both" for an unlawful
taking (RPAPL 861 [2] [emphasis added]; see Fernandes v Morgan,
95 AD3d 1626, 1627 [2012]). Were it the case that plaintiffs
"only present[ed] evidence as to one measure of damages," their
claimed damages would be used in the absence of "evidence going
to the other measure" (Jenkins v Etlinger, 55 NY2d 35, 39 [1982];
see Fisher v Qualico Contr. Corp., 98 NY2d 534, 539 [2002];
Barron v Dube, 48 AD3d 1059, 1059 [2008]; Jaklitsch v Finnerty,
96 AD2d 690, 691 [1983]). In this case, however, both plaintiffs
and defendants submitted proof as to the other measure, with
plaintiffs providing the affidavit and report of a forester who
opined that the stumpage value of the trees was under $5,000.
Inasmuch as plaintiffs' own motion papers left unresolved the
issue of whether "a lesser amount than that claimed . . . will
sufficiently compensate for the loss," Supreme Court correctly
directed an immediate trial on the issue of damages (Jenkins v
Etlinger, 55 NY2d at 39; see CPLR 3212 [c]; see also Winegrad v
New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

      As a final matter, plaintiffs assert that they are entitled
to an award of counsel fees as a component of their damages.
                              -4-                  520367

"Under the general rule, attorneys' fees and disbursements are
incidents of litigation and the prevailing party may not collect
them from the loser unless an award is authorized by agreement
between the parties or by statute or court rule" (Matter of A.G.
Ship Maintenance Corp. v Lezak, 69 NY2d 1, 5 [1986] [citations
omitted]; accord Mount Vernon City School Dist. v Nova Cas. Co.,
19 NY3d 28, 39 [2012]). Plaintiffs claim that they may recover
counsel fees pursuant to RPAPL 861 (2), but that statute only
provides for an award of the "reasonable costs associated with
maintaining [the] action." Counsel fees are not costs, and
empowering a court to award one does not ordinarily constitute
authority to award the other (see Moskowitz v Wolchok, 126 AD2d
463, 464 [1987]; Matter of O'Brien, 28 AD2d 1040, 1040 [1967];
Miss Susan, Inc. v Enterprise & Century Undergarment Co., Inc.,
270 App Div 747, 750 [1946], affd 297 NY 512 [1947]). Strictly
construing the language of RPAPL 861, as we must (see e.g. Matter
of Mingo v Chappius, 123 AD3d 1347, 1347 [2014], lv dismissed 25
NY3d 1038 [2015]), we discern nothing beyond an intent to award
incidental "expenses incurred in prosecuting or defending an
action or special proceeding," the definition of costs rather
than counsel fees (Stevens v Central Natl. Bank of Boston, 168 NY
560, 566 [1901]; see e.g. Alland v Consumers Credit Corp., 476
F2d 951, 955-956 [2d Cir 1973]; Libra Bank Ltd. v Banco Nacional
De Costa Rica, S.A., 570 F Supp 870, 892-893 [SD NY 1983]).
Thus, RPAPL 861 does not permit an award of counsel fees to a
prevailing party and, to the extent our decision in Vanderwerken
v Bellinger (72 AD3d at 1476) reads to the contrary, it should
not be followed.

     McCarthy, J.P., Rose and Lynch, JJ., concur.


     ORDERED that the order is affirmed, with costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
