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

678
CA 15-00079
PRESENT: SMITH, J.P., CENTRA, PERADOTTO, SCONIERS, AND WHALEN, JJ.


IRONWOOD, L.L.C., PLAINTIFF-RESPONDENT-APPELLANT,
ET AL., PLAINTIFF,

                    V                               MEMORANDUM AND ORDER

JGB PROPERTIES, LLC, DEFENDANT-APPELLANT-RESPONDENT.
(APPEAL NO. 2.)


SCHLATHER, STUMBAR, PARKS & SALK, LLP, ITHACA (RAYMOND M. SCHLATHER OF
COUNSEL), AND CAMARDO LAW FIRM, P.C., AUBURN, FOR DEFENDANT-APPELLANT-
RESPONDENT.

HANCOCK ESTABROOK, LLP, SYRACUSE (JANET D. CALLAHAN OF COUNSEL), FOR
PLAINTIFF-RESPONDENT-APPELLANT.


     Appeal and cross appeal from a judgment of the Supreme Court,
Onondaga County (Brian F. DeJoseph, J.), entered March 27, 2014. The
judgment awarded plaintiff Ironwood, L.L.C., punitive damages in the
amount of $300,000, plus costs and disbursements.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.

     Memorandum: Ironwood, L.L.C. (plaintiff) is the successor in
interest to an easement granting a “permanent right of way for a
railroad spur track” over property owned by defendant. The spur track
connected plaintiff’s property with the main railway line. After
defendant removed the spur track over plaintiff’s objections,
plaintiff commenced this action seeking, inter alia, a declaratory
judgment, injunctive relief, and damages based upon defendant’s
alleged unlawful interference with the easement.

     This matter has been before this Court several times already
(Ironwood, L.L.C. v JGB Props., LLC [appeal No. 2], 122 AD3d 1305, lv
dismissed 24 NY3d 1113; Ironwood, L.L.C. v JGB Props., LLC, 122 AD3d
1306; Ironwood, L.L.C. v JGB Props., LLC, 99 AD3d 1192). Defendant
now appeals from a judgment, entered after a hearing, awarding
plaintiff punitive damages in the amount of $300,000, together with
costs and disbursements. We affirm.

     As a preliminary matter, we note that, “although plaintiff did
not cross-appeal from the judgment in appeal No. 2, we exercise our
discretion to treat [its] notice of [cross] appeal [in appeal No. 1]
as valid and deem [its cross] appeal as taken from the . . . judgment
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                                                         CA 15-00079

in appeal No. 2” (Nary v Jonientz, 110 AD3d 1448, 1448 [internal
quotation marks omitted]; see Hughes v Nussbaumer, Clarke & Velzy, 140
AD2d 988, 988; see also CPLR 5520 [c]).

     Defendant contends that Supreme Court erred in awarding more than
nominal punitive damages. We reject that contention. We note that
“[t]he Due Process Clause of the Fourteenth Amendment prohibits a
State from imposing a grossly excessive punishment on a tortfeasor”
(BMW of N. Am., Inc. v Gore, 517 US 559, 562 [internal quotation marks
omitted]). The three factors to consider in evaluating whether an
award is grossly excessive are “the degree of reprehensibility . . . ;
the disparity between the harm or potential harm suffered . . . and
[the] punitive damages award; and the difference between this remedy
and the civil penalties authorized or imposed in comparable cases”
(id. at 575; see Western N.Y. Land Conservancy, Inc. v Cullen, 66 AD3d
1461, 1464, appeal dismissed 13 NY3d 904, lv denied 14 NY3d 705, rearg
denied 15 NY3d 746). Defendant concedes that “[o]nly the first two .
. . factors are relevant here.” Upon our review of the punitive
damages award, we conclude that it was neither excessive nor violative
of defendant’s due process rights. With respect to the first factor,
we have already determined on a prior appeal that defendant’s conduct
was sufficiently reprehensible to entitle plaintiff to punitive
damages inasmuch as “defendant acted with actual malice when it
removed the spur track[,] and . . . its conduct rose to the level of a
wanton, willful or reckless disregard of plaintiff[’s] rights relative
to the easement” (Ironwood, L.L.C., 99 AD3d at 1195 [internal
quotation marks omitted]), and that determination was binding on the
court. Furthermore, our determination of defendant’s reprehensibility
constitutes the law of the case for this Court and it “cannot be
disturbed on this appeal” (Trisvan v County of Monroe, 55 AD3d 1282,
1283, lv denied 11 NY3d 716 [internal quotation marks omitted]). With
respect to the second factor, “we conclude that the award 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
[internal quotation marks omitted]; see Fareway Hgts. v Hillock, 300
AD2d 1023, 1025).

     We reject defendant’s further contention that the court could not
use defendant’s wealth to justify the punitive damages award inasmuch
as the punitive damages award was not “otherwise unconstitutional”
(State Farm Mut. Auto. Ins. Co. v Campbell, 538 US 408, 427). We also
reject defendant’s contention that the court erred in “excluding all
evidence, except evidence of defendant[’s] . . . net worth, from the
hearing held on punitive damages.” The court properly determined that
the excluded evidence was relevant only to issues that were either
abandoned by defendant or previously decided against defendant on
prior appeals (see Ironwood, L.L.C. [appeal No. 2], 122 AD3d at 1305-
1306; Ironwood, L.L.C., 122 AD3d at 1306; Ironwood, L.L.C., 99 AD3d at
1195-1196; see also Lipp v Port Auth. of N.Y. & N.J., 57 AD3d 953,
954; Trisvan, 55 AD3d at 1283; Matter of Hicks v Schoetz, 261 AD2d
944, 945; see generally Cardo v Board of Mgrs., Jefferson Vil. Condo
3, 67 AD3d 945, 945-946).
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                                                         CA 15-00079

     Although we have taken judicial notice, when necessary, of the
briefs and records previously filed with us on the appeals taken in
this action (see Edward J. Minskoff Equities, Inc. v Crystal Window &
Door Sys., Ltd., 108 AD3d 488, 490), we decline to take judicial
notice of defendant’s petition seeking declaratory relief before the
Surface Transportation Board. We deem that petition to be dehors the
record, and we have considered neither it nor references to it on this
appeal (see Sanders v Tim Hortons, 57 AD3d 1419, 1420). In any event,
we previously determined that the Interstate Commerce Commission
Termination Act of 1995 (49 USC § 10101, et seq.) does not expressly
or impliedly preempt the instant action (Ironwood, L.L.C., 122 AD3d at
1306).

     We reject plaintiff’s contentions on its cross appeal that the
court erred in precluding it from offering evidence of defendant’s
alleged wrongdoing committed after the commencement of this action and
in denying plaintiff’s request to include legal expenses, such as
attorney’s fees, as part of the punitive damages award. “Whether to
award punitive damages in a particular case, as well as the amount of
such damages, if any, are primarily questions which reside in the
sound discretion of the original trier of the facts” (Nardelli v
Stamberg, 44 NY2d 500, 503; see Baity v General Elec. Co., 86 AD3d
948, 950). Contrary to plaintiff’s contentions, we conclude that the
court did not abuse its discretion.

     We have reviewed the parties’ remaining contentions and conclude
that they are without merit.




Entered:   July 10, 2015                        Frances E. Cafarell
                                                Clerk of the Court
