QUESTION OF FACT WHETHER DEFENDANT HAD A GOOD FAITH BELIEF THAT HE OWNED THE LAND WHERE TREES WERE HARVESTED; THEREFORE THE ISSUE WHETHER THE TREBLE DAMAGES ASPECT OF RPAPL 861 APPLIES MUST BE DETERMINED AT TRIAL (THIRD DEPT).

The Third Department determined there was a question of fact whether defendant had a good faith belief that the land on which trees were harvested was his own property. Therefore whether plaintiff was entitled to treble damages pursuant to Real Property Actions and Proceedings Law (RPAPL) 861 must be determined at trial:

“[T]he current version of RPAPL 861 was enacted . . . in an effort to deter the illegal taking of timber by increasing the potential damages for that activity” … . If a person violates RPAPL 861 by cutting another person’s trees without the other’s consent, or by causing such cutting to occur, “an action may be maintained against such person for treble the stumpage value of the tree or timber or [$250] per tree, or both and for any permanent and substantial damage caused to the land or the improvements thereon as a result of such violation” … . However, if a defendant in such an action “establishes[,] by clear and convincing evidence, that when the defendant committed the violation, he or she had cause to believe the land was his or her own, . . . then he or she shall be liable for the stumpage value or [$250] per tree, or both” … . Thus, “a trespasser’s good faith belief in a legal right to harvest timber does not insulate that person from the imposition of statutory damages, but merely saves him or her from having to pay the plaintiff treble damages” … . “Whether treble damages pursuant to RPAPL 861 are warranted is generally a factual determination” … . Although Gregory Miller testified that he intended to remove trees only from his own property, the record reflects that he did not have a survey of the property and relied on a determination of the boundary lines based on his own measurements. We conclude that a factual question exists, as Gregory Miller has failed at this stage of the proceedings to prove by clear and convincing evidence that he had a good faith belief that he owned the land at issue … . Holser v Geerholt, 2021 NY Slip Op 02578, Third Dept 4-29-21