State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 8, 2016 522155 

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TERRENCE GIBBS,

Respondent,

v MEMORANDUM AND ORDER

RALPH PORATH et al.,

Appellants.

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Calendar Date: October 12, 2016

Before: Peters, P.J., McCarthy, Lynch, Rose and Mulvey, JJ.

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Thomas H. McCann, Malone, for appellants.

John A. Piasecki, Malone, for respondent.

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Lynch, J.

Appeal from an order of the Supreme Court (Demarest, J.),

entered July 20, 2015 in Franklin County, upon a decision of the

court awarding damages to plaintiff.

The facts of this case are set forth in detail in a prior

decision (121 AD3d 1210 [2014]) and are briefly summarized as

follows. This action was commenced in August 2010 to resolve a

boundary line dispute between the owners of adjoining parcels

located in the Town of Chateaugay, Franklin County. The disputed

area of property included two man-made ponds that are referenced

as the upper and lower ponds. Plaintiff alleged that defendants

trespassed on his property and altered the upper pond and removed

trees at the lower pond. After a nonjury trial in 2012, Supreme

Court determined that plaintiff owned the disputed area – 

including the lower pond and part of the upper pond – and awarded

him damages in excess of $40,000. On appeal, this Court affirmed
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Supreme Court's determination with regard to the boundary line,

but found that the damages award was improper because it failed

to account for defendants' partial ownership of the upper pond

and did not exclude the area of the lower pond from the area that

needed to be reforested (id.). Upon remittal, Supreme Court

determined that plaintiff was entitled to damages in the amount

of $39,823.35 for the reforestation and restoration of .116 acres

in the vicinity of the lower pond and $2,155.68 for 25% of the

cost of the repair of the upper pond. Defendant appeals.

"[I]n reviewing a verdict after a nonjury trial, this Court

may independently review the evidence and, while deferring to the

trial court's credibility assessments, grant the judgment

warranted by the evidence" (Shattuck v Laing, 124 AD3d 1016, 1017

[2015]; see St. Lawrence Factory Stores v Ogdensburg Bridge &

Port Auth., 121 AD3d 1226, 1227 [2014], lv denied 25 NY3d 907

[2015]). "The admissibility and scope of expert testimony is

addressed to the trial court's sound discretion and will not be

disturbed on appeal absent an abuse of discretion or an error of

law" (Pember v Carlson, 45 AD3d 1092, 1093 [2007] [internal

quotation marks, brackets and citations omitted]). 

We find ample support for Supreme Court's assessment of

damages with respect to the lower pond. As defined in our prior

decision, the issue before the trial court was the cost to

restore the area around the lower pond, excluding the area of the

pond. Upon remittal, Herbert Boyce, a consulting forester with

28 years of experience, opined that, based upon his observation

of the "cleared area around the [lower] pond, along the surveyed

line" and knowledge of the type of trees that grew in the area

surrounding the lower pond, .116 acres would require

reforestation by planting 107 "red maple, white birch, white pine

[and] white cedar[]" trees. Boyce explained that the acreage to

be reforested was the area around the pond that had been cleared,

but not the pond itself, which he calculated with a GPS to be an

area of 625 square feet. Boyce further determined that the

density for the restoration work was based on the US Forest

Service Timber Management Field Book and chose the species of

trees based on what trees grow there naturally. 
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A plaintiff may claim damages for permanent injury to real

property based on restoration costs for permanent injury (see

Jenkins v Etlinger, 55 NY2d 35, 39 [1982]; Hartshorn v Chaddock,

135 NY 116, 121-122 [1892]; Prashant Enters. v State of New York,

228 AD2d 144, 148 [1996]). For defendants' part, Lon Haverstock,

an excavator that defendants retained to clear the lower pond,

offered conflicting testimony with regard to the nature of the

work that he performed and the character of the vegetation in and

around the area. Defendants did not offer any alternative means

for calculating or reducing plaintiff's damages. Given the

limited purpose of the second trial, we discern no error in

Supreme Court's determination to credit the assessment by

plaintiff's expert of the cost to restore the area surrounding

the lower pond (see Dilapi v Empire Drilling & Blasting, Inc., 62

AD3d 936, 937 [2009]; Gross v Sandow, 5 AD3d 901, 903 [2004], lv

dismissed and denied 3 NY3d 735 [2004]). However, we find that

plaintiff's damages for the repair of the lower pond should be

based on Boyce's 2012 cost estimate and, thus, it should be

reduced to a total of $28,157.541 (see Prashant Enters. v State

of New York, 228 AD2d at 147-148).

Turning to the upper pond, upon remittal, plaintiff

submitted testimony by Aaron Stark, an excavator with experience

constructing ponds. Stark testified that he inspected the upper

pond in 2015. He repeated his prior assessment that the upper

pond needed a new spillway and liner and added that, since the

first trial, there had been additional erosion that needed

repair. Nonetheless, Stark testified that the cost of the work

would total $8,622.72, basically the same amount as in the first

trial (see 121 AD3d at 1215). Defendants contend that

plaintiff's expert erred by including the expense to repair the

additional erosion and that Supreme Court should not have

discredited the testimony of defendants' expert.

1 We calculated this amount using the reduced number of

trees proposed in the 2015 estimate, multiplied by the unit price

per tree in Boyce's 2012 estimate, plus travel costs. Like

Boyce, we added 50% of the adjusted cost of the trees for

planting and applied 8% sales tax to the adjusted cost of

materials. 
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We discern no abuse of discretion in Supreme Court's

determination to credit Stark's testimony with regard to the cost

of the repair work. Stark provided an itemized estimate for the

work that he opined was necessary. Although defendants' expert

testified that Stark's estimate was excessive and that he could

have done the work for less, his testimony was largely

hypothetical, inasmuch as it is not disputed that defendants'

expert had retired and could not actually do the work at the cost

he proposed. Under the circumstances of this case, and because

the narrow purpose of remittal was to allow Supreme Court to

limit plaintiff's damages based upon his ownership interest in

the pond, we modify Supreme Court's order and find that plaintiff

is entitled to damages totaling 25% of the 2012 estimated cost to

repair the upper pond, without regard to the additional erosion. 

In light of this modification, the parties' remaining arguments

have been rendered academic. 

Peters, P.J., McCarthy, Rose and Mulvey, JJ., concur.

ORDERED that the order is modified, on the law, without

costs, by reversing so much thereof as awarded plaintiff damages

in the amount of $41,979.03; plaintiff is awarded damages in the

amount of $28,157.54 to restore the .116 acres in the vicinity of

the lower pond and $2,155.29 to repair the upper pond, for a

total of $30,312.83; and, as so modified, affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court