Philosophers have often asked, “If a tree falls in the forest and no one is around to hear it, does it make a sound?” Earlier this year, in In the Matter of Rosbaugh v. Town of Lodi, 2025 NY Slip Op 01406 (Mar. 13, 2025), the Court of Appeals was confronted with a slight variation of this age-old question: If trees are cut in a forest without their owners’ consent by an overzealous tree service company, will the municipality that hired the company be subject to treble damages?
The court turned to the legislative history of New York’s Real Property Actions and Proceedings Law (RPAPL) §861, which stands for the general principle that treble damages were intended to be punitive in nature. As a result, treble damages authorized under RPAPL 861 were not available to the tree owners against the Town of Lodi, because the latter was immune from punitive damages under New York law.
At its roots, RPAPL 861 protects tree owners from unauthorized removal of their trees
The New York State Legislature recognized the importance trees play in New Yorkers’ lives when it enacted New York’s Real Property Actions and Proceedings Law (RPAPL) § 861 in 1963 (though predecessor statutes date back to 1805). The current RPAPL 861, enacted in 2003, created a statutory cause of action when a party removes another’s tree without consent.
RPAPL 861 acknowledges the elusive value of trees, and grafts on a deterrent—treble damages. Under the statute, a person who, without the owner’s consent, “cuts, removes, injures or destroys, or causes to be cut, removed, injured or destroyed” a tree owned by another may be liable to the owner for “treble the stumpage value of the tree or timber or two hundred fifty dollars per tree, or both and for any permanent and substantial damage caused to the land or the improvements thereon as a result of such violation.”
The statute also explains how to determine “stumpage value.” First, it defines stumpage value to be “the current fair market value of a tree as it stands prior to the time of sale, cutting, or removal.” The methods for determining stumpage value under the statute include the tree’s sales price in an arm’s-length transaction, a review of solicited bids, and “other appropriate means to assure that a fair market value is established within an acceptable range based on the appropriate geographic area.”
The statute also contains a “good faith” exemption. If a defendant establishes by clear and convincing evidence that when they violated the statute, “he or she had cause to believe the land was his or her own, or that he or she had an easement or right of way across such land which permitted such action, or he or she had a legal right to harvest such land,” then the defendant would not be liable for treble the stumpage value of a tree.
A related branch of New York law: Municipalities are not subject to punitive damages
In Matter of Regina Metro. Co., LLC v. New York State Div. of Hous. & Community Renewal, 35 N.Y.3d 332 (2020), the Court of Appeals held that “treble damages are generally viewed as punitive.” However, a court must look at the language of the statute where treble damages are available to “determine whether the legislature intended the treble damages to function punitively.”
This is noteworthy because it is well established in New York that, as the Court of Appeals held in Clark-Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 N.Y.2d 382 (1987), neither the State of New York nor its political subdivisions is subject to punitive damages. The reason public funds are not “available, directly or indirectly, for the payment of damages beyond those actually suffered,” according to the Court of Appeals in Sharapata v. Town of Islip, 56 N.Y.2d 332 (1982), is because “the twin justifications for punitive damages—punishment and deterrence—are hardly advanced when applied to a governmental unit.” That is because the taxpayers bearing the burden of punishment would be the same people expected to benefit from the punishment and deterrence sought by punitive damages.
The Court of Appeals opines on whether a municipality can be subject to RPAPL 861’s treble damages
In Matter of Rosbaugh v. Town of Lodi, the Court of Appeals took up the thorny question of whether Lodi could be assessed trebled damages under RPAPL 861. It ruled that Lodi could not.
The case arose when a tree service company hired by Lodi removed 55 trees from the Rosbaughs’ property that Lodi determined were a hazard to travelers. An arbitrator awarded the Rosbaughs $145,047 in trebled damages under RPAPL 861 against Lodi, based on a total stumpage value of $48,349. The Rosbaughs also received remedial measure costs and the value of pre-cut wood that was removed from their property.
Lodi unsuccessfully tried to vacate the award. The Supreme Court confirmed the arbitrator’s award, holding that treble damages in RPAPL 861 were not punitive because they did not require a finding of “actual malice or a wanton, willful or reckless disregard for plaintiffs’ rights.”
The Appellate Division affirmed that decision. The appellate court’s majority held that RPAPL 861’s treble damages were not punitive because they were intended to capture compensatory damages, including “the intrinsic value of a tree in its natural state—such as its environmental, historical and aesthetic qualities—which can be substantially greater to a landowner than the mere marketable lumber value.” The appellate court’s two dissenting justices would have held that the treble damages were punitive because it would be unreasonable to read RPAPL 861’s good faith clause as suggesting that owners of trees should not be made whole if violators of the statute acted in good faith.
The Court of Appeals reversed the Appellate Division’s decision, holding that “the structure and the history of [RPAPL 861] show that the treble damages it authorizes are meant to punish those who do not act in good faith and are punitive.” Therefore, RPAPL 861’s treble damages could not be imposed against Lodi.
After citing the above precedent that municipalities are not subject to punitive damages, the Court of Appeals explained why RPAPL 861’s treble damages were punitive.
First, the court sided with the Appellate Division’s dissenting justices, holding that RPAPL 861’s “good faith” provision demonstrated the punitive nature of its treble damages. The court explained that it is “unreasonable to read the statute in a way that allows the defendant’s state of mind—a showing the defendant acted in good faith—to reduce a recovery merely intended to make the plaintiff whole.” The plain reading of the statute, according to the court, shows that “treble damages, punitive in nature, are mitigated by the good faith of the defendant.”
Second, the court held that RPAPL 861’s history showed its treble damages were punitive. The court noted that the version of the statute that was in effect from 1963 until the current version was enacted in 2003 authorized a plaintiff to “demand judgment for treble” their damages, but allowed a reduction based on good faith from treble to single damages. The court further noted that even the predecessor statutes dating back to 1805 offered treble damages to plaintiffs, which could be reduced to single damages if the defendant had a good faith belief that they owned the land or if they had removed a tree by mistake.
Finally, the court noted that “a consistent theme of punishment and deterrence runs throughout the statute’s legislative history.” The court cited a 2003 letter from the Assistant Commissioner of the New York State Department of Environmental Conservation that explained that the then-penalties for the conduct prohibited by RPAPL 861 “[were] not high enough to deter the illegal taking of timber.” According to the Assistant Commissioner, “increasing the penalties to allow for treble the stumpage value . . . will provide for greater deterrence for the knowing offender while at the same time promote more diligence and care on the part of legitimate timber harvesters to prevent inadvertent trespass and timber theft.”
A decision that casts far-reaching shade?
On paper, Rosbaugh provides a fresh citation for the well-established proposition that municipalities are shielded from punitive and punitive-style liability. But in practice, Rosbaugh offers an important, nuanced understanding of treble damages as punitive relief, and food for thought for parties litigating over trees that were allegedly unlawfully felled by a party hired by a municipality.
John C. Armentano is a partner with Farrell Fritz in the firm’s Hauppauge, Long Island office. He practices in the areas of land use, zoning, and municipal law. He can be reached at jcarmentano@farrellfritz.com.
Reprinted with permission from the September 24, 2025 edition of The New York Law Journal © 2025 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.
