Appeal from a judgment of the District Court of Suffolk County, Fourth District (C. Steven Hackeling, J.), entered March 8, 2005. The judgment, after a nonjury trial, awarded plaintiffs the sum of $5,000.

Judgment affirmed without costs.

Substantial justice was done between the parties in accordance with the rules and principles of substantive law in this small claims action for damage caused by defendants' removal of a 120 foot long and 6 foot high section of a privet hedge located on plaintiff's property (UDCA 1804, 1807). Defendants failed to establish the defense of adverse possession of the hedgerow at issue by the clear and convincing evidence required (see Katona v Low, 226 AD2d 433 [1996]; Morris v DeSantis, 178 AD2d 515 [1991]). They did not dispute plaintiffs' account that for a number of years during the relevant period, plaintiffs, in the role of owners of the hedgerow, had discussed its maintenance with defendant Richard Mascia's first wife. This testimony obviated defendants' contention that they held the hedgerow under a claim of right (see Dittmer v Jacwin Farms, 224 AD2d 477 [1996]). This version of the events was credited by the court below, as trier of fact, in finding in favor of plaintiffs, and such determination, which is supported by the record, is entitled to deference upon appeal (see Claridge Gardens v Menotti, 160 AD2d 544 [1990]; Hileman-Rizzo v Krysty, 10 Misc 3d 135[A], 2005 NY Slip Op 52118[U] [App Term, 9th & 10th Jud Dists]). Plaintiffs introduced two estimates for the cost of replacing the hedgerow (see UDCA 1804). Contrary to defendants' contention, the present action sounds in property damage, with a three-year statute of limitations (CPLR 214 [*2][4]), and not in intentional tort.

Rudolph, P.J., Tanenbaum and Lippman, JJ., concur.
Decision Date: April 27, 2006