Dunst v. Gold

Alan B. Dunst, Plaintiff-Respondent, against David Gold, Defendant-Appellant. Defendant appeals from a "decision/order" and judgment of the Small Claims Part of the Civil Court of the City of New York, New York County (Gerald Lebovits, J.), entered on or about May 14, 2015 and April 14, 2015, respectively, after trial, in favor of plaintiff and awarding him damages in the principal sum of $5,000. Per Curiam. Judgment (Gerald Lebovits, J.), entered on or about April 14, 2015, reversed, without costs, and action dismissed. Appeal from "decision/order" (Gerald Lebovits, J.), entered on or about May 14, 2015, dismissed, without costs, as subsumed in the appeal from the aforesaid judgment. Plaintiff commenced this Small Claims action against his neighbor, defendant David Gold, after plaintiff discovered that trees on his Fire Island property had been cut down. Liability was improperly imposed upon defendant below, since the record is devoid of any evidence "to associate the defendant with the cutting of the trees" (Partridge v Battiato, 88 AD2d 588 [1982], affd 57 NY2d 580 [1982]), or to permit the court to "rationally infer" that defendant was responsible for the cutting of the trees (Zablow v DiSavino, 22 AD3d 748, 749 [2005][cutting occurred in the same area where, 10 years earlier, defendant had removed a tree from the plaintiff's property with her permission because it interfered with his view]; Spano v Kline, 50 AD3d 1499 [2008], lv denied 11 NY3d 708 [2008][cutting occurred in an area in which only defendant and his employees were working]). Indeed, the proof adduced merely indicated that when plaintiff went to open his house for the spring/summer season, after being away for some five months, he noticed that the trees were removed and a fence had been taken down. Plaintiff neither observed anyone removing the trees nor adduced credible evidence that anyone was performing similar work on defendant's property. Thus, plaintiff has shown no basis upon which to impose liability on defendant, and dismissal of this small claims action achieves substantial justice consistent with substantive law principles (see CCA 1807). In light of our disposition, we deem it unnecessary to reach the other issues raised by defendant. THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. I concur I concur Decision Date: March 01, 2016