Image credit: NYC Department of Parks & Recreation.
Sidewalk contractor injured City trees during sidewalk reconstruction. A property owner hired Tri-Rail Construction, Inc., to repair the sidewalk adjacent to the owner’s property. During the course of the sidewalk repair work Tri-Rail injured City-owned trees. The City sued Tri-Rail for money damages for the injury to the City trees.
In support of its civil suit for damages the New York City Department of Parks & Recreation invoked Parks rule 56 RCNY 5-01(c) which states that, in addition to all other legal remedies, Parks shall seek civil damages from any person who cuts, removes or destroys any trees under the jurisdiction of Parks without Parks permission. A civil lawsuit for damages is in addition to criminal punishment of up to six months imprisonment and a fine of up to $15,000 for anyone who injures a City tree.
Tri-Rail moved to dismiss the complaint for damages. Supreme Court Justice Eileen A. Rakower upheld the complaint and Tri-Rail appealed.
The Appellate Division, First Department, reversed, ruled that the City lacked capacity to sue for civil damages, dismissed the complaint, and invalidated Parks rule that authorized Parks to sue for injury to City trees. The Appellate Division ruled that the City of New York lacked a common-law right to sue. A city’s right to sue for damages must be derived from enabling statutes and the relevant enabling statutes regarding the cutting, removal and destruction of City trees did not authorize the City to recover money damages for injury to the City’s trees. The Appellate Division concluded that the Parks rule authorizing the civil lawsuit was out of harmony with the enabling statute and was therefore invalid.
City of New York v. Tri-Rail Cons’t, Inc., 76 N.Y.S.3d 404 (1st Dep’t 2018).
By: Ross Sandler
Thanks for publishing this as I am considering suit against NYC to enable repair of damage to my property due to city owned tree roots, which start on public right of way and extend into my private property.
The permitting process is onerous; NYC Parks must give permit before I can rip up my driveway and rid my property of these roots which has caused large rupture in concrete walking surface. This includes hiring of certified arborist and multiple meetings to discuss options.