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Ligo v. Gerould

Appellate Division of the Supreme Court of New York, Fourth Department
Nov 19, 1997
244 A.D.2d 852 (N.Y. App. Div. 1997)

Summary

finding "actual malice"

Summary of this case from IN RE METHYL TERTIARY BUTYL ETHER PROD. LIA. LIT

Opinion

November 19, 1997

(Appeal from Judgment of Chautauqua County Court, Ward, J. — Injunction.)

Present — Denman, P. J., Pine, Balio, Boehm and Fallon, JJ.


Judgment unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: The conduct of defendant Jeffrey W. Gerould in entering upon the property of plaintiffs without their consent and dumping compost on their porch and boathouse roof constitutes a trespass ( see, Chlystun v. Kent, 185 A.D.2d 525, 526; 104 N Y Jur.2d, Trespass, § 10). The contention of defendants that Gerould was entitled to trespass upon plaintiffs' property because plaintiff N. Lee Lingo had previously trespassed upon defendants' property is without merit. Plaintiffs' culpable conduct is not a defense to trespass ( see, Anderson v WHEC-TV [appeal No. 2], 92 A.D.2d 747). The further contention of defendants that Gerould was entitled to "return" the compost to plaintiffs' property because Ligo had wrongfully placed it on defendants' property ( see, Rossi v. Ventresca Bros Constr. Co., 94 Misc.2d 756, 758) is without merit. It is undisputed that the compost pile had been placed by Ligo, not on defendants' property, but on a paper street over which all parties had an easement by implication.

County Court erred in failing to award damages to plaintiffs based upon Gerould's trespass upon plaintiffs' property. In a nonJury case, however, this Court has the authority to grant "`the judgment which upon the evidence should have been granted by the trial court'" and, where, "as here, the record is complete, that power extends to making an appropriate award of damages" ( Karagiannis v. New York State Thruway Auth., 187 A.D.2d 1009, 1010, lv dismissed 81 N.Y.2d 835; see, Rivera v State of New York, 205 A.D.2d 602, 603; Mesick v. State of New York, 118 A.D.2d 214, 220, lv denied 68 N.Y.2d 611). In the absence of proven damages, plaintiffs are entitled to nominal damages in an action for trespass ( see, Kronos, Inc. v. AVX Corp., 81 N.Y.2d 90, 95; 104 N.Y. Jur.2d, Trespass, § 36), and we award plaintiffs one dollar in nominal damages.

Plaintiffs are also entitled to an award of punitive damages. In order to recover punitive damages for trespass on real property, plaintiffs have 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 plaintiffs' rights ( see, Chlystun v. Kent, supra, at 527; UA-Columbia Cablevision v. Fraken Bldrs., 114 A.D.2d 448, 449; MacKennan v. Bern Realty Co., 30 A.D.2d 679; 104 N.Y. Jur 2d, Trespass, § 42). From our review of the record, we conclude that plaintiffs met their burden of proving that Gerould acted with actual malice and that his conduct amounted to a willful disregard of plaintiffs' rights. We therefore award plaintiffs $1,500 in punitive damages.

We have considered the remaining contentions of plaintiffs and conclude that they are without merit.


Summaries of

Ligo v. Gerould

Appellate Division of the Supreme Court of New York, Fourth Department
Nov 19, 1997
244 A.D.2d 852 (N.Y. App. Div. 1997)

finding "actual malice"

Summary of this case from IN RE METHYL TERTIARY BUTYL ETHER PROD. LIA. LIT

awarding $1 in nominal damages and $1500 in punitive damages in trespass case where defendant acted with "actual malice" in entering upon "the property of plaintiffs without their consent and dumping compost on their porch and boathouse roof"

Summary of this case from IN RE METHYL TERTIARY BUTYL ETHER PROD. LIA. LIT
Case details for

Ligo v. Gerould

Case Details

Full title:N. LEE LIGO et al., Appellants, v. JEFFREY W. GEROULD et al., Respondents

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Nov 19, 1997

Citations

244 A.D.2d 852 (N.Y. App. Div. 1997)
665 N.Y.S.2d 223

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