“Appellate Division of the Supreme Court of the State of New York, Third Department.
The primary questions presented on this appeal are whether Supreme Court (1) properly granted plaintiff’s motion for summary judgment on the issue of liability, (2) correctly denied a cross motion by defendant Town of Duanesburg (hereinafter defendant) for an order dismissing the complaint, and (3) erred in failing to dismiss plaintiff’s request for treble damages. In our view Supreme Court properly ruled as to the first two questions but erroneously failed to dismiss plaintiff’s claim for treble damages.
The pertinent facts of this case are as follows. Plaintiff is the owner of an improved parcel of real property containing a two-story wood frame structure, two wood frame additions, a free-standing shed, trees and a lawn located on the shore of Lake Mariaville in the Town of Duanesburg, Schenectady County. The property was used as a seasonal camp for recreational purposes.
Defendant had received complaints concerning the condition of the structure and had an inspection made by its engineers. The report of the engineers concluded that the two-story structure was dangerous and unsafe but only in “limited danger of collapse”. Based on this report defendant’s Town Board, without notice to plaintiff, passed a resolution on June 8, 1989 declaring the structure unsafe and ordering that it be demolished. Defendant thereafter engaged defendant Carl Mykel to do the demolition work. Mykel demolished the structure and stripped away the forestry and lawn on September 15, 1989. The only notice to plaintiff was mailed July 17, 1989, incorrectly addressed, advising plaintiff of the Town Board’s June 8, 1989 decision and stating that “[t]his is the only notice you will receive” (emphasis supplied).
This action for trespass, negligence and intentional destruction of property was commenced and sought treble damages from both defendants plus punitive damages against Mykel. After joinder of issue, plaintiff moved for summary judgment on the issue of liability. Defendant cross-moved for similar relief and also sought dismissal of the claim for treble damages. Supreme Court, inter alia, granted plaintiff’s motion for summary judgment on the issue of liability and denied defendant’s cross motion. This appeal by defendant followed.
[176 A.D.2d 991]
Plaintiff correctly argues that defendant did not properly act according to its police powers in demolishing plaintiff’s campsite structure because it failed to comply with plaintiff’s statutory and due process rights to notice and an opportunity to be heard before the structure was declared unsafe pursuant to Town Law § 130 (16) (b), (d) and (e) (see, Yax v Town of Evans, 41 A.D.2d 232). Defendant’s Local Laws, 1978, No. 1 of Town of Duanesburg, which deals with unsafe buildings, is not in conformity with the provisions of the Town Law (see, Town Law § 130 [16] [b], [d], [e]).”
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Leagle Website 10 October 1991.