BASS v. CATUCCI

Ordered that the judgment is modified, on the law, by deleting the provision thereof awarding the plaintiffs treble damages; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Westchester County, for further proceedings consistent herewith.

It is undisputed that the defendant William Catucci cut down trees on the plaintiffs' land, and thus is liable under RPAPL 861 (1). However, upon our review of the record, we find that there remains a question of fact as to whether Catucci's cutting down of the trees was "casual and involuntary" (RPAPL 861 [a]). Thompson, J.P., Sullivan, Miller, Ritter and Santucci, JJ., concur.