All - thank you for the helpful discussions to date. Since we really didn't know what questions to ask, posting your thoughts and comments has provided plenty of actionable info for our restoration efforts.
Speaking of restoration efforts, here's a quick update: the town officially notified the neighbor for violation of Steep Slope EPOD provisions citing, in part, removal of several trees. The notice demanded no further removal of any trees or vegetation, and also included advisement that restoration of the area back to it's [pre] existing condition will be required. Immediate slope stabilization efforts are required (conservation mix seeding and mulching) during the next quick snowmelt, with further consideration by the Planning and Conservation Boards, and town consul regarding remediation required for the large trees and vegetation removed. I wonder if the town might find it in their interest to bring action against the homeowner in an attempt to have his insurance co. foot the bill for some of the more costly EPOD restoration.
As to our legal efforts, I've been hesitant to offer much in the way of substantive detail pending a filing but here's a little more for those interested... Suffice to say John's comments have been most accurate when bringing a civil action in NY, and one must be very careful so as not to limit his available remedies. It is not unusual to bring action under RPAPL §861 and recover treble damages based on restoration or cost of cure provided, however, that 1.) to be liable for a trespass, a defendant must intend the intrusion, and 2.) in order to avoid treble damages, defendants had the burden of proving by clear and convincing evidence that, when they removed the trees from plaintiffs' property, they "had cause to believe the land was [their] own".
It is undisputed that the neighbor intentionally directed removal of trees and vegetation from our property to improve his view. He admits liability for some but not all trees and vegetation removed, disclaiming any property damage resulting from the tree service removing the debris through our property. Specifically, in a letter received from the Claim Representative, "As I advised you, our insured is not negligent, therefore not responsible, for any damages caused by the tree service's removal of tree debris over or through your land. Our insured did not direct nor control the removal of the debris. Any claim you have for these additional damages would have to be made against the tree service."
We disagree and hold the neighbor 100% liable for all damage to the property. With respect to liability under RPAPL §861, one can be held liable for the actions of an an independent contractor if "they directed the trespass or such trespass was necessary to complete the contract". While it is true, as contended by the neighbor, that a party who retains an independent contractor has no liability for the negligent acts of such contractor (see, e.g., Rosenberg v Equitable Life Assur. Socy. of U.S., 79 NY2d 663, 668), the record here amply justifies a finding that the neighbor was negligent in the manner in which they instructed the contractor to perform the work which, in turn, constitutes a well-recognized exception to the rule against the imposition of liability for the acts of an independent contractor (see, Kleeman v Rheingold, 81 NY2d 270, 274).
That is true because the neighbor freely admitted walking the contractor to the site and personally pointing out the specific large trees he wanted removed, including trees which ended up being on our side of the line. The record will reveal that the neighbor provides no evidence that he had probable cause to believe that it owned the property in question. Instead, he freely admits not knowing where the common lot line was, or securing a survey prior to identifying trees for removal to the contractor. Whether the tree service removed debris through our property without his permission is immaterial to law, he is negligent and liable in our view.
Interestingly enough, RPAPL §861 does not require that a trespass occur in order to impose liability (see Crosby v RAM Forest Prods., 244 AD2d 1007). Never the less, I believe any jury could rationally conclude that the tree service as an independent contractor, intentionally trespassed on our property at the negligent direction of the neighbor. Of course, the tree service contractor still may be held responsible in subrogation to the homeowner's insurer, but that's not our problem. If the contractor was in fact uninsured as professed, a simple bankruptcy filing the day before trial would cause any civil action against him to be severed and the insurance co. would be S.O.L. In any event, my understanding is that subrogation and made-whole doctrine requires the insured claimant be made whole for its damages, which may well come in handy for the neighbor but not us.
-sigh- all we ever wanted to know about tree law and then some...
Speaking of restoration efforts, here's a quick update: the town officially notified the neighbor for violation of Steep Slope EPOD provisions citing, in part, removal of several trees. The notice demanded no further removal of any trees or vegetation, and also included advisement that restoration of the area back to it's [pre] existing condition will be required. Immediate slope stabilization efforts are required (conservation mix seeding and mulching) during the next quick snowmelt, with further consideration by the Planning and Conservation Boards, and town consul regarding remediation required for the large trees and vegetation removed. I wonder if the town might find it in their interest to bring action against the homeowner in an attempt to have his insurance co. foot the bill for some of the more costly EPOD restoration.
As to our legal efforts, I've been hesitant to offer much in the way of substantive detail pending a filing but here's a little more for those interested... Suffice to say John's comments have been most accurate when bringing a civil action in NY, and one must be very careful so as not to limit his available remedies. It is not unusual to bring action under RPAPL §861 and recover treble damages based on restoration or cost of cure provided, however, that 1.) to be liable for a trespass, a defendant must intend the intrusion, and 2.) in order to avoid treble damages, defendants had the burden of proving by clear and convincing evidence that, when they removed the trees from plaintiffs' property, they "had cause to believe the land was [their] own".
It is undisputed that the neighbor intentionally directed removal of trees and vegetation from our property to improve his view. He admits liability for some but not all trees and vegetation removed, disclaiming any property damage resulting from the tree service removing the debris through our property. Specifically, in a letter received from the Claim Representative, "As I advised you, our insured is not negligent, therefore not responsible, for any damages caused by the tree service's removal of tree debris over or through your land. Our insured did not direct nor control the removal of the debris. Any claim you have for these additional damages would have to be made against the tree service."
We disagree and hold the neighbor 100% liable for all damage to the property. With respect to liability under RPAPL §861, one can be held liable for the actions of an an independent contractor if "they directed the trespass or such trespass was necessary to complete the contract". While it is true, as contended by the neighbor, that a party who retains an independent contractor has no liability for the negligent acts of such contractor (see, e.g., Rosenberg v Equitable Life Assur. Socy. of U.S., 79 NY2d 663, 668), the record here amply justifies a finding that the neighbor was negligent in the manner in which they instructed the contractor to perform the work which, in turn, constitutes a well-recognized exception to the rule against the imposition of liability for the acts of an independent contractor (see, Kleeman v Rheingold, 81 NY2d 270, 274).
That is true because the neighbor freely admitted walking the contractor to the site and personally pointing out the specific large trees he wanted removed, including trees which ended up being on our side of the line. The record will reveal that the neighbor provides no evidence that he had probable cause to believe that it owned the property in question. Instead, he freely admits not knowing where the common lot line was, or securing a survey prior to identifying trees for removal to the contractor. Whether the tree service removed debris through our property without his permission is immaterial to law, he is negligent and liable in our view.
Interestingly enough, RPAPL §861 does not require that a trespass occur in order to impose liability (see Crosby v RAM Forest Prods., 244 AD2d 1007). Never the less, I believe any jury could rationally conclude that the tree service as an independent contractor, intentionally trespassed on our property at the negligent direction of the neighbor. Of course, the tree service contractor still may be held responsible in subrogation to the homeowner's insurer, but that's not our problem. If the contractor was in fact uninsured as professed, a simple bankruptcy filing the day before trial would cause any civil action against him to be severed and the insurance co. would be S.O.L. In any event, my understanding is that subrogation and made-whole doctrine requires the insured claimant be made whole for its damages, which may well come in handy for the neighbor but not us.
-sigh- all we ever wanted to know about tree law and then some...
