In March of 2012, defendants Brad Fournia and John Jamieson entered into an agreement whereupon the former was to remove timber from the latter's property with each to recognize a financial gain from the resulting sale of logs and firewood. Fournia then began logging Jamieson's land pursuant to this agreement. The Agreement provided, inter alia, that Fournia would remove timber from Jamieson's property in exchange for an agreed upon percentage of payment for the value of the timber removed (33%), together with dollar values for cord amounts of various firewood privately sold.^[FN1]

Although Jamieson's property lies immediately adjacent to that of plaintiffs, there was no survey referred to when Fournia began logging. Instead, defendants relied upon field evidence of rusted posts and some colored ribbons placed at the rear corners of Jamieson's lands located at what defendants mistakenly believed to be plaintiffs' property line. While those who placed the ribbons are unknown to the parties, Jamieson nevertheless informed these locations to Fournia to establish a point of reference as to the location of the property lines. Fournia used the posts identified by Jamieson, together with the ribbons, to follow what he believed was the Jamieson/Halstead property line.

There is no dispute that defendants logged a portion of plaintiffs' land and that they did so without consent. Approximately two acres of plaintiffs' land was damaged when trees were taken — specifically, 230 merchantable trees and an additional 294 pre-merchantable trees.

In this motion for summary judgment plaintiffs argue, first, that there is no question that a [*2]trespass occurred. Plaintiffs next contend that RPAPL 861 mandates their absolute entitlement to "treble the stumpage value of the tree or timber or [$250.00] per tree[,]" electing here the remedy of $250.00 per tree for a total of $131,000.00), in addition to forestry fees, survey costs and attorney's fees. The Court agrees with the first premise, but not the second. Plaintiffs are entitled to summary judgment solely on the issue of defendant's liability for the damages caused.

Plaintiffs have established, without meaningful opposition, that defendants entered onto their property and removed trees without their consent, thereby establishing a prima facie entitlement to treble damages against defendant (see RPAPL 861 [1]). The burden has thus shifted to defendants to mitigate the damages by showing that they had cause to believe that Fournia had a legal right to harvest plaintiffs' trees (see RPAPL 861[2]; Fernandes v Morgan,

With that said, treble damages are recoverable "for willful, malicious, reckless, or other bad faith conduct" (Gracey v Van Camp, 299 AD2d 837, 838 [2002]). For the purposes of RPAPL 861 (2) (a), a trespass is involuntary if the trespassers acted in a good-faith reasonable belief in their right to harvest the trees and whether defendants so acted is necessarily a matter uniquely within their own knowledge (see Cunningham v Brischke, 167 AD2d 604, 605-606 [1990]; Whitaker v McGee, 111 AD2d 459, 461-462 [1985]). Here, defendants come forth in their testimony with an explanation for their belief that they had a right to harvest the trees.Accordingly, the Court finds that they have raised a question of fact as to whether their trespass was the result of good-faith reasonable belief in their right to harvest the trees. Although defendants could have avoided this calamity by having a surveyor mark the property lines, their failure to do so may more than likely be the result of negligence — as opposed to recklessness. Either conclusion, however, is for the fact finder to determine.

Based upon the foregoing, it is

ORDERED that plaintiffs' motion for summary judgment is granted to the extent that they are awarded judgment on the issue of liability only and the motion is otherwise denied; and it is further

ORDERED that the parties are to appear as scheduled on July 7, 2014 at the Clinton County Courthouse for a trial on the issue of damages; and it is further

ORDERED that any additional relief sought has been expressly considered and is denied.

The original of this Decision and Order is returned to counsel for defendants for filing and service with notice of entry. The Notice of Motion dated February 19, 2014 has been filed by the Court together with the submissions referenced hereinbelow.

Lake George, New York

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ROBERT J. MULLER, J.S.C.