[Download] "Hileman-Rizzo v. Krysty" by Supreme Court of the State of New York Appellate Term: 9Th And 10Th Judicial Districts * Book PDF Kindle ePub Free

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eBook details

• Title: Hileman-Rizzo v. Krysty
• Author : Supreme Court of the State of New York Appellate Term: 9Th And 10Th Judicial Districts
• Release Date : January 13, 2005
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 65 KB

Description

Substantial justice was done in accordance with the rules and principles of substantive law in this small claims action (UJCA 1804, 1807) for damages resulting from the pruning of a tree at or near the parties property line. A tree is the sole property of the one on whose land its trunk is situated (see generally Marino v Lorch, 2 Misc 3d 56 [App Term, 9th & 10th Jud Dists 2003]; Flagman v Rubin, 1 Misc 3d 127[A], 2003 NY Slip Op 51542[U] [App Term, 2d &11th Jud Dists]; see also 1 NY Jur 2d, Adjoining Landowners § 55). Plaintiff argued in this matter that over the years, the trunk of the tree, which defendant originally planted on his own property, had grown over the property line so that it stood on the land of both parties. This, if established, would render the parties tenants in common in the tree and support an action for damages or for trespass, depending upon the nature of the injury to the tree (see 1 NY Jur 2d, Adjoining Landowners § 56; see also Dubois v Beaver, 25 NY 123 [1862]; Hollenbeck v Genung, 198 AD2d 677 [1993]). However, each party in such a case is entitled to conduct ordinary clipping or pruning, so long as this does not injure the main trunk of the tree (1 NY Jur 2d, Adjoining Landowners § 56). Plaintiff introduced no evidence to establish that defendant trespassed upon plaintiffs property to prune the tree, or that the trunk was injured in the operation (see e.g. 104 NY Jur 2d, Trespass § 50; see also Schwartzberg v Shek Cheung Lui, 279 AD2d 466 [2001]), and the court credited defendants contention that all of the branches trimmed were on his property (at least where they joined the tree) and were trimmed from his property. This determination is entitled to deference upon appeal, as it accords with a reasonable view of the evidence (see e.g. Claridge Gardens Inc. v Menotti, 160 AD2d 544 [1990]).

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