New York State Court of Claims

New York State Court of Claims

TICE-SHEPARD v. THE STATE OF NEW YORK, #2006-029-577, Claim No. 108092


State pruned a tree and removed another from their right-of-way which was abutting claimant’s property; claimant claims tress were on her property and is seeking compensatory and punitive damages on theories of trespass, prima facie tort and waste. Claimant failed to establish by a preponderance of the credible evidence that the trees were located on her property. Therefore, claim dismissed.

Case Information

1 1.The caption has been amended sua sponte to reflect the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended sua sponte to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant’s attorney:
Norman Shapiro, Esq.
Defendant’s attorney:
Hon. Eliot Spitzer
Attorney General of the State of New YorkBy: J. Gardner Ryan, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 24, 2006
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant seeks to recover for damage to her real property located in the Village of Unionville, Town of Minisink, Orange County, New York as a result of the alleged negligence of the New York State Department of Transportation (hereinafter DOT). The trial of this matter was bifurcated and this decision deals only with the issue of liability.
Claimant, Eugenia Tice-Shepard, testified that she purchased the subject property, which contains her Victorian-style home, in 1992 (see Exhibit 1). The subject property abuts State Route 284.
This claim arises from actions of DOT employees in cutting down a Norway Maple tree and pruning a Sugar Maple tree on July 31, 2002 in the course of maintenance of State Route 284. Claimant asserts that both trees were located on her property and that the State was negligent in removing and pruning the trees. She stated that the trees were situated at the foot of her lawn on the crest of a slope where her property drops to meet the elevation of a flagstone sidewalk which forms the northerly edge of Route 284 (see Exhibit B [Photographs 35, 36, 61 and 62]).
The testimony adduced at trial established that each tree had a full spreading canopy of branches which extended over the lawn and roadway (see id.). The testimony further established that on July 31, 2002 a DOT tree crew felled the Norway Maple because it had been placed on a list of trees to be removed for the betterment of Route 284 (see Exhibits 11 and 13) and pruned several branches from the Sugar Maple (see Exhibits 3-7).
Claimant asserts that the defendant acted reprehensibly, maliciously and recklessly. She seeks compensatory and punitive damages of $210,000 on theories of trespass, prima facie tort and waste (see Real Property Actions and Proceedings Law § 861 and Highway Law § 322). In its answer, defendant denied claimant’s ownership of the trees and asserted that regardless of ownership, the State had the right to remove or prune any trees adjoining the highway when, in the exclusive judgment of the Commissioner of DOT, it was deemed necessary to the maintenance of the highway (Highway Law § 45 [5]). In addition, there is no doubt that the right of the State to remove and prune trees includes a corollary obligation which has been enforced in the Court of Claims, and particularly by this Court, on numerous occasions (see Harris v Village of East Hills, 41 NY2d 446; Bennett v State of New York, Claim No. 104429, Motion No. M-66963, filed September 26, 2003, Mignano, J.; Grega v State of New York, Claim No. 101901, filed February 25, 2002, Mignano, J.).
Notwithstanding the State’s right and obligation to remove and maintain trees adjacent to public highways, the Courts have held that shade trees enhance the value of a building lot (Stevens v State of New York, 21 Misc 2d 79, affd 14 AD2d 823). While an adjoining property owner does have certain rights against third parties for damage to trees located within the State right-of-way, the abutting owner has no such proprietary interest against the State and certainly has no supervening interest in derogation of the governmental obligations to maintain safe highways. As a result, unless the tree or vegetation in question is located solely upon the claimant’s property, claimant has no right of compensation against the State for the discharge of its governmental duties (Stevens v State of New York, 21 Misc 2d 79, affd 14 AD2d 823, supra).
As a result of the above analysis, the threshold issue in this matter becomes the actual location of the Norway Maple that was removed and the Sugar Maple that was pruned. In seeking to recover for the loss of one tree and the pruning of the other, it is claimant’s burden to establish that the trees were located on her property. To support her contention, claimant submitted into evidence a copy of her deed (Exhibit 1) which states that her boundary line runs along the easterly side of Route 284 and the deposition transcript of James Patterson (Exhibit 26) who was a DOT engineering technician in July 2002. He testified that he viewed the subject tree stump and “it looked like it was pretty close to the State right-away” [sic] (Exhibit 26, Page 24, Lines 17 and 18).
While claimant asserts that this statement “proves” her ownership of the subject trees, it is not as dispositive as claimant avers. Nowhere does Mr. Patterson indicate his belief as to whether the tree was on the State’s right-of-way or claimant’s property. In addition, while the deed indicates claimant’s property extends to the easterly side of Route 284, no evidence was submitted to establish where the easterly terminus of Route 284 is located and claimant’s property begins.
At trial, claimant advised the Court and her counsel (both apparently for the first time) that she possessed the original survey of her property. The document was marked as Exhibit 25 for identification. As claimant truthfully testified, she is not qualified to interpret the survey. Nevertheless, she offered no expert witness to do so nor did claimant proffer any evidence authenticating the document. Finally, the survey document was not disclosed to the defendant during discovery. Therefore, the Court sustained the State’s objection to the admission into evidence of Exhibit 25.
Claimant’s expert witness, William Olson, a botanical consultant, testified that he examined the stump of the Norway Maple and found it healthy. He did acknowledge that examination of the stump does not describe the condition of the canopy of the tree and the upper branches and, as a result, he was unable to give a definitive opinion as to the condition of the tree at its mid-level and canopy.
Thomas Glendon, a DOT Highway Maintenance Supervisor in Orange County who succeeded the retired Vincent Rudinski in the Port Jervis subresidency, performs tree pruning and removal. The witness stated that Mr. Rudinski prepared a list of trees to be removed (Exhibit 11) and it listed the Norway Maple and Sugar Maple. After becoming supervisor, Mr. Glendon performed his own tree survey on October 2001, reviewed the trees listed on Exhibit 11 and prepared his own list (Exhibit 13). He determined the Norway Maple should be removed but the Sugar Maple could remain. The photographs in evidence (Exhibit 3-7 and Exhibits A and B) fail to establish that these decisions by the State’s employees were improper.
The Court concludes that claimant has failed to establish by a preponderance of the credible evidence that the subject trees were located on her property, a precondition to compensation. In default of such proof, her cause of action for trespass is fatally defective, as is her claim sounding in prima facie tort. Assuming, arguendo, the trees were located on her property, claimant failed to established by a preponderance of the credible evidence that the decision by DOT to remove one tree and prune the other was not in accordance with Highway Law § 45 (5) which authorizes DOT employees or agents to enter lands adjacent to State highways to inspect trees for the purpose of determining whether any are in such a condition as to constitute a danger to users of the adjacent highway and to remove or prune those trees or parts thereof which in the judgment of DOT constitutes such a danger. Lastly, there is absolutely no evidence in the record which establishes that the decisions of the State employees were so erroneous that the resultant removal and pruning constitutes “waste”. Thus, claimant cannot prevail on this cause of action.
In accordance with the foregoing, the claim is hereby dismissed. The Chief Clerk is directed to enter judgment accordingly.

May 24, 2006
White Plains, New York

Judge of the Court of Claims