The above picture is not from this case.
Bedell v. LONG IS. LANDSCAPING, 2025 NY Slip Op 50379 – NY: Dist. Court, Suffolk County, 6th Dist. 2025:
“Plaintiff Donald W. Bedell (“Plaintiff”) filed a complaint in this
case on October 15, 2024 against Defendants Long Island Landscaping and
Lorraine Fosmire (“Defendants”), seeking monetary damages as a result of
damage to trees on Plaintiff’s property. Specifically, Plaintiff
alleges that his neighbor, Defendant Fosmire, hired the Co-Defendant,
Long Island Landscaping, to trim Plaintiff’s trees to the extent they
hung over onto Defendant Fosmire’s property; however, Defendant Long
Island Landscaping crossed onto Plaintiff’s property line without his
permission and irreparably damaged his trees by cutting them back too
far. Plaintiff seeks fourteen thousand ($14,000.00) dollars in
compensatory damages. In addition, Defendant Long Island Landscaping has
counterclaimed against Plaintiff Bedell for attorney’s fees. There are
no cross-claims in this case.
After presiding over a non-jury trial on February 21, 2025, this
Court makes the following findings of fact and conclusions of law and
issues this Decision and Order:
I. Summary of Trial
A. Plaintiff’s Case
During trial, Plaintiff Bedell testified that he resides at 21
Melrose Parkway, East Patchogue, New York. Plaintiff’s neighbor,
Defendant Fosmire, resides at 11 Melrose Parkway, East Patchogue, New
York.
On May 14, 2024, Plaintiff Bedell came home and noticed that the
trees on his property had been damaged, namely, the branches on certain
trees were cut to the trunk. Plaintiff’s neighbor, Defendant Fosmire had
hired a landscaping company, Defendant Long Island Landscaping, to trim
Plaintiff’s trees to the extent some branches hung over onto Defendant
Fosmire’s neighboring property. However, rather than trim the tree
branches back to the property line (which was marked by a fence
separating the two properties), the landscaping company cut the branches
all the way back to the trunk. According to Plaintiff, the trees were
approximately three (3) feet from the property line; thus, the
landscaping company crossed onto his property by three (3) feet when it
cut the tree branches back to the truck.
Plaintiff Bedell’s wife, Janice Bedell, testified on behalf of her
husband. She testified that, prior to the tree trimming, Defendant
Fosmire’s daughter asked Janice Bedell for permission to trim the trees
that were hanging over the Fosmire’s property, and she gave such
permission. At that time, there was no conversation regarding exactly
which branches could be trimmed. On May 14, 2024, Janice Bedell came
home and saw the tree branches had been trimmed back to the trunk; she
then asked Martinez what he had done. Martinez told Janice Bedell he
trimmed the trees, just as Fosmire had asked. Janice Bedell told
Martinez that he could not cut the branches past the property line.
Martinez stated, “I did what I was told.” Janice Bedell then spoke with
Fosmire, who told Bedell “that [cutting the tree branches back to the
truck] is not what I told him to do, and by the time I saw it, it was
too late.” Fosmire further stated that she obtained permission to trim
the trees, and “I did not realize that [Martinez] had gone all the way
up [the tree to the tree trunk] to the top.” Defendant Fosmire admitted
that Janice Bedell had accurately described their conversation.
In support of Plaintiff Bedell’s case, he submitted the following
exhibits: (1) photographs taken by Plaintiff of (a) the trees after
being cut and (b) the property line; (2) estimates for replacement of
the trees.
Plaintiff Bedell seeks fourteen thousand ($14,000.00) dollars in
compensatory damages, which is the cost of removing the existing nine
(9) trees, and replacing them with totally new trees.
B. Defendants’ Evidence
Defendant Lorraine Fosmire testified that she resides at 11 Melrose
Parkway, East Patchogue, New York, and is the Plaintiff’s neighbor. She
testified that, prior to hiring Defendant Long Island Landscaping, her
daughter obtained permission from Plaintiff’s wife to “trim” the
Bedells’ trees because they hung over onto Fosmire’s property. Defendant
Fosmire testified that her husband had trimmed the trees back for
years; but, since he recently passed away, she hired Defendant Long
Island Landscaping to trim the trees. She hired Defendant Long Island
Landscaping to do the landscaping on May 14, 2024, for which she paid
one thousand six hundred and thirty-eight ($1,638.00) dollars, and she
was satisfied with the completed job. When the Bedells objected to the
completed job, Defendant Fosmire stated that “I had no idea he
[Martinez] was going to cut all the way up [the tree to the trunk].” She
further testified that “[i]f he [Martinez] was going to do that, he
should have — [unspecified].”
In Defendant Fosmire’s defense, she submitted the following exhibits,
which were entered into evidence: (1) arborist’s report and (2) photos.
Alex Martinez, on behalf of Defendant Long Island Landscaping,
testified that he is the manager of Long Island Landscaping. Long Island
Landscaping was hired by Defendant Fosmire to do landscaping on her
property on May 14, 2024, including trimming nine (9) trees in the front
of the property. Martinez testified that he trimmed the trees as he was
instructed to do by Defendant Fosmire. According to Martinez, Fosmire
told him to “go as high as possible,” and “cut all the way to the top,”
which he did. Upon completion, Defendant Fosmire stated that she was
pleased with the job Martinez had done.
In addition, Martinez admitted to crossing onto Plaintiff Bedell’s
property by approximately a foot or a foot and a half to trim the trees.
He further testified that he chose to cut the tree branches right to
the trunk (rather than to the fence-line) because “[i]f we were to go to
the fence line, pretty much, it’s just one little stump that you’re
probably looking at, maybe like not even a foot long, which a lot of
people that we have done work for don’t like to see that [tree branch
stumps]…they [customers] prefer to see it [the tree branch] flush with
the tree.” He further testified that Fosmire told him that she had
Plaintiff Bedell’s permission to cut the branches to the trunk. Martinez
conceded that he had no conversation with Plaintiff Bedell, or his
wife, at any time.
Finally, Martinez testified that Defendant Fosmire paid a total of
one thousand six hundred and thirty-eight ($1,638.00) dollars, for the
landscaping job, which included additional yard work; Martinez estimated
that the cost of trimming the nine (9) trees in the front was
approximately six hundred and thirty-eight ($638.00) dollars. Martinez
also testified that the cut branches were beginning to grow again.[1]
In Defendant Long Island Landscaping’s defense, Martinez submitted
the following exhibits, which were entered into evidence: (1) invoice;
and (2) photos (from Long Island Landscaping).
II. Findings of Fact
Based on the credible evidence submitted during trial, this Court
finds that Defendant Fosmire, residing at 11 Melrose Parkway, East
Patchogue, New York, hired Defendant Long Island Landscaping to do
landscaping on her property on May 14, 2024. The landscaping included
trimming tree branches on nine (9) trees [Japanese Cedars and White
Pines] that were located on Plaintiff Bedell’s neighboring property at
21 Melrose Parkway, East Patchogue, New York.
Prior to contracting with Defendant Long Island Landscaping,
Defendant Fosmire’s daughter had obtained permission from Janice Bedell
to trim the tree branches to the extent they hung over onto the
Fosmires’ property.
On May 14, 2024, Defendant Long Island Landscaping trimmed
Plaintiff’s trees to the extent some branches hung over onto Defendant
Fosmire’s neighboring property. However, rather than trim the tree
branches back to the property line (which was marked by a fence
separating the two properties), Defendant Long Island Landscaping cut
the branches all the way back to the trunk. In so doing, the Defendant
Long Island Landscaping crossed onto Plaintiff Bedell’s property by
three (3) feet when it cut the tree branches back to the truck.
Defendant Fosmire paid Defendant Long Island Landscaping one thousand
six hundred and thirty-eight ($1,638.00) dollars for the job.
III. Conclusions of Law
Courts have generally recognized that “vegetation penetrating
adjacent property presents a type of legal problem for which the remedy
of self-help can be invoked. This remedy can be generally defined as the
adjoining owner’s removal of branches or roots, to the extent that they
protrude into his property.” 65 ALR4th 603 [1988]. In addition, courts
have generally prohibited the “cutting of the entire plant or tree in
the exercise of self-help.” Id. For example, the court in Grandona v. Lovdal, 70 Cal 161, 11 P 623, 624 [1886]
held that trees whose branches extended over the land of another were
only nuisances to the extent of the encroachment, and the person over
whose premises they hung could, inter alia, cut the branches off to the property line, but could not cut down the tree.
Pursuant to the Restatement of Torts 2d § 929, the measure of damages resulting in harm to land from a trespass is as follows:
Ҥ 929. Harm to Land from Past Invasions
(1) If one is entitled to a judgment for harm to land
resulting from a past invasion and not amounting to a total destruction
of value, the damages include compensation for
(a) the difference between the value of the land before the
harm and the value after the harm; or at his election in an appropriate
case, the cost of restoration that has been or may be reasonably
incurred,
(b) the loss of use of the land, and
(c) discomfort and annoyance to him as an occupant.”
***
Restatement of Torts 2d § 929.
In this case, Martinez admitted he encroached onto the Plaintiff’s
property (albeit at the direction of Fosmire) to cut the tree branches
back. In so doing, Martinez violated a basic rule of tree trimming (and
land use): one cannot enter another’s property without express
permission. Accordingly, this Court concludes that Defendant Long Island
Landscaping is liable for the harm to the Plaintiff’s property as a
result of the trespass.
With regard to damages, Plaintiff presented no proof of the
property’s “diminution in value” (such as an appraisal, expert opinion).
In addition, the Plaintiff presented no evidence of the cost of repair.
Instead, he presented evidence of the cost of entirely removing the
existing nine (9) trees, and replacing them with totally new trees; this
Court declines to award replacement costs in light of the testimony and
evidence that the branches have begun to regrow.
Accordingly, this Court awards to Plaintiff the cost of the tree
trimming job, (estimated to be six hundred and thirty-eight ($638.00)
dollars), along with punitive damages in the same amount. Defendant Long
Island Landscaping’s counterclaim is DENIED.
By reason of the foregoing, it is hereby:
ORDERED: Judgment for the Plaintiff in the amount of six hundred and
thirty-eight ($638.00) dollars in compensatory damages, and six hundred
and thirty-eight ($638.00) in punitive damages, for a total of one
thousand two hundred and seventy-six ($1,276.00) dollars, plus interest
from the date of incident (May 14, 2024), at a rate of nine percent (9%)
per annum pursuant to CPLR § 5001 and CPLR § 5004.
[1] This testimony is supported by the arborist’s report submitted by Defendant Fosmire. (See Def.’s Ex. C).”