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

935
CA 14-02232
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, VALENTINO, AND WHALEN, JJ.


IN THE MATTER OF ARBITRATION BETWEEN ERIC
SVENSON AND MARCELLE L. SVENSON,
PETITIONERS-APPELLANTS,

                    AND                           MEMORANDUM AND ORDER

RICHARD B. SWEGAN, DEBRA A. DINNOCENZO,
RESPONDENTS-RESPONDENTS,
ET AL., RESPONDENT.


ERICKSON WEBB SCOLTON & HAJDU, LAKEWOOD (PAUL V. WEBB, JR., OF
COUNSEL), FOR PETITIONERS-APPELLANTS.

SELLSTROM LAW FIRM, LLP, JAMESTOWN (STEPHEN E. SELLSTROM OF COUNSEL),
FOR RESPONDENTS-RESPONDENTS.


     Appeal from an order and judgment (one paper) of the Supreme
Court, Chautauqua County (Deborah A. Chimes, J.), entered September
15, 2014. The order and judgment denied in part petitioners’
application to vacate an arbitrator’s award.

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

     Memorandum: In a proceeding pursuant to CPLR 7503, petitioners
appeal from an order and judgment that modified an arbitration award
by vacating the provision awarding punitive damages but otherwise
confirmed the award. We affirm.

     Richard B. Swegan and Debra A. Dinnocenzo (respondents) own a
parcel of real property in Chautauqua County, and petitioners own an
adjoining parcel. Several maple trees have grown along the border
separating the two parcels. In 2008, petitioners hired an architect
as part of a project to improve their property, and the architect
thereafter directed a tree removal service to remove two maple trees
located near the property line. Respondents commenced an action
against petitioners seeking damages for the removal of the trees,
alleging that the trees had been removed without respondents’ consent.
Following a prior appeal to this Court (see Swegan v Svenson, 104 AD3d
1131), the parties executed an arbitration agreement to resolve the
dispute.

     Following a hearing, the arbitrator found, inter alia, that
petitioners had trespassed on respondents’ property and violated RPAPL
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                                                         CA 14-02232

861. The arbitrator awarded respondents treble damages pursuant to
RPAPL 861 (1), as well as punitive damages. Petitioners subsequently
made an application to Supreme Court to vacate the award pursuant to
CPLR 7511, respondents opposed the application to vacate and sought to
confirm the award pursuant to CPLR 7510, and the court granted each
application in part, as we have noted above.

     Initially, we reject respondents’ contention that petitioners are
estopped from pursuing an appeal because they agreed in the
arbitration agreement that the “decision of the arbitrator would be
final and binding on the parties.” It is well settled that,
notwithstanding the final and binding nature of an arbitration
agreement, an award pursuant thereto may be vacated if it is
“irrational, violates a strong public policy, or clearly exceeds a
specifically enumerated limitation on the arbitrator’s power” (Matter
of Buffalo Teachers Fedn., Inc. v Board of Educ. of City Sch. Dist. of
City of Buffalo, 50 AD3d 1503, 1505, lv denied 11 NY3d 708 [internal
quotation marks omitted]; see Matter of New York City Tr. Auth. v
Transport Workers Union of Am., Local 100, 14 NY3d 119, 123; Matter of
United Fedn. of Teachers, Local 2, AFT, AFL-CIO v Board of Educ. of
City Sch. Dist. of City of N.Y., 1 NY3d 72, 79). Inasmuch as
petitioners contend, inter alia, that the award was made in excess of
the arbitrator’s authority and is against public policy, we conclude
that those issues are subject to our review.

     We reject, however, petitioners’ contention that the arbitrator’s
alleged misapplication of RPAPL 861 is a sufficient ground to vacate
the award in its entirety. “An arbitrator’s resolution of questions
of substantive law or fact is not judicially reviewable” (Matter of
Professional Staff Congress/City Univ. of N.Y. v Board of Higher Educ.
of City of N.Y., 39 NY2d 319, 323; see Matter of SCM Corp. [Fisher
Park Lane Co.], 40 NY2d 788, 793). Thus, even assuming, arguendo,
that the arbitrator misapplied RPAPL 861, we conclude that such error
is beyond our review. Alternatively, we note that the broad language
in the arbitration agreement concerning the arbitrator’s discretion to
award damages provides an independent basis upon which to affirm the
damages award (see generally Matter of SCM Corp. [Fisher Park Lane
Co.], 40 NY2d at 792-793).

     We reject petitioners’ further contention that the award of
treble compensatory damages is punitive in nature and therefore
violative of public policy or in excess of the arbitrator’s authority
(see Garrity v Lyle Stuart, Inc., 40 NY2d 354, 357). Treble damages
pursuant to RPAPL 861 (1) are not equivalent to punitive damages.
“[I]n order to recover punitive damages for trespass on real property,
[a plaintiff has] 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
plaintiff[’s] rights” (Western N.Y. Land Conservancy, Inc. v Cullen,
66 AD3d 1461, 1463, appeal dismissed 13 NY3d 904, lv denied 14 NY3d
705, reconsideration denied 15 NY3d 746 [internal quotation marks
omitted]; see Golonka v Plaza at Latham, 270 AD2d 667, 670; Ligo v
Gerould, 244 AD2d 852, 853). By contrast, RPAPL 861 (1) permits a
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                                                         CA 14-02232

property owner to maintain an action “for treble the stumpage value of
the tree . . . or two hundred fifty dollars per tree, or both” against
“any person” who, “without the consent of the owner thereof, cuts,
removes, injures or destroys, or causes to be cut, removed, injured or
destroyed, any . . . tree.” Such person may avoid the imposition of
treble damages if he or she “establishes by clear and convincing
evidence, that when the person committed the violation, he or she had
cause to believe that the land was his or her own” (RPAPL 861 [2]).
If such person satisfies that burden, he or she remains “liable for
the stumpage value or two hundred fifty dollars per tree, or both”
(id.). Thus, contrary to petitioners’ contention, inasmuch as no
showing of actual malice or a wanton, willful or reckless disregard of
respondents’ rights is necessary to justify an award of treble damages
under RPAPL 861 (1), that portion of the arbitrator’s award is not
punitive in nature.

     We reject petitioners’ contention that the court erred when it
ordered interest on the arbitration award from April 10, 2014, the
date of the award (see CPLR 5002, 5003; Board of Educ. of Cent. Sch.
Dist. No. 1 of Towns of Niagara, Wheatfield, Lewiston & Cambria v
Niagara-Wheatfield Teachers Assn., 46 NY2d 553, 558; Dermigny v
Harper, 127 AD3d 685, 686).

     Finally, we have examined petitioners’ remaining contention with
respect to General Obligations Law § 15-108 and conclude that it is
without merit.




Entered:   November 20, 2015                    Frances E. Cafarell
                                                Clerk of the Court
