SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

18 

CA 12-00987 

PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND SCONIERS, JJ. 

 

RICHARD B. SWEGAN AND DEBRA A. DINNOCENZO, 

PLAINTIFFS-RESPONDENTS, 

V MEMORANDUM AND ORDER

ERIC SVENSON, MARCELLE L. SVENSON, 

DEFENDANTS-APPELLANTS, 

ET AL., DEFENDANTS. 

 

ERICKSON WEBB SCOLTON & HAJDU, LAKEWOOD (PAUL V. WEBB, JR., OF

COUNSEL), FOR DEFENDANTS-APPELLANTS.

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

FOR PLAINTIFFS-RESPONDENTS. 

 

Appeal from an order of the Supreme Court, Chautauqua County

(James H. Dillon, J.), entered February 2, 2012. The order, insofar

as appealed from, denied the motion of defendants Eric Svenson and

Marcelle L. Svenson for summary judgment. 

It is hereby ORDERED that the order so appealed from is

unanimously modified on the law by granting the motion in part and

dismissing the second cause of action against defendants Eric Svenson

and Marcelle L. Svenson and as modified the order is affirmed without

costs. 

Memorandum: Plaintiffs commenced this action asserting, inter

alia, causes of action for conversion and trespass and seeking damages

resulting from the removal of two boundary line trees located

partially on property owned by plaintiffs. The trees were removed

during the course of renovations performed by Eric Svenson and

Marcelle L. Svenson (defendants) on their adjoining property. 

Defendants hired defendant David McKee, an architect, to provide

various architectural design and consulting services as well as

project management for the renovations, and McKee hired defendant

David Mathews, sued individually and doing business as Great Lakes

Tree Service, to cut and remove the two trees. We conclude that

Supreme Court erred in denying that part of defendants’ motion for

summary judgment dismissing the amended complaint against them with

respect to the second cause of action, for “destruction of interest,”

but otherwise properly denied the motion. We therefore modify the

order accordingly.

With respect to the first and third causes of action, for
-2- 18 

CA 12-00987 

conversion and trespass, defendants contend that they cannot be

directly liable because they did not cut down the trees, nor can they

be vicariously liable because McKee and Mathews were not defendants’

agents. Regardless of McKee’s status as an independent contractor,

defendants may be held liable for the trespass and ensuing conversion

if they “directed the trespass or such trespass was necessary to

complete the contract” between defendants and McKee (Axtell v Kurey,

222 AD2d 804, 805, lv denied 88 NY2d 802; see Gracey v Van Camp, 299

AD2d 837, 838). Even assuming, arguendo, that defendants met their

initial burden, we conclude that the court properly determined that

plaintiffs raised issues of fact whether defendants “directed the

trespass or [whether] such trespass was necessary to complete the

contract” (Axtell, 222 AD2d at 805; see Morrison v Wescor Forest

Prods. Co., 28 AD3d 1225, 1226). Defendants contend for the first

time on appeal that they were entitled to summary judgment dismissing

the cause of action for conversion on the ground that they had the

right as joint owners to remove the trees because they were

structurally unsafe and created a safety hazard or private nuisance,

and thus that contention is not properly before us (see Ciesinski v

Town of Aurora, 202 AD2d 984, 985). Defendants further contend that

they were entitled to summary judgment dismissing the fourth cause of

action, for treble damages under RPAPL 861, on the ground that there

is no evidence that they acted recklessly, willfully or wantonly. 

That contention is likewise raised for the first time on appeal and

thus is not properly before us (see id.). 

Finally, we note that the second cause of action, for

“destruction of interest,” is duplicative of the cause of action for

conversion, and we therefore grant defendants’ motion with respect to

the second cause of action (see generally M.D. Carlisle Realty Corp. v

Owners & Tenants Elec. Co. Inc., 47 AD3d 408, 409).

Entered: March 15, 2013 Frances E. Cafarell

Clerk of the Court