Associate Lia Fierro, Esq. successfully defended an appeal to the Appellate Division, Second Department, resulting in the affirmation of a favorable lower-court order and an award of costs.
In the matter of Rothauser v Greer, 2016 NY Slip Op 08556 [2d Dept Dec. 21, 2016], the Appellate Division, Second Department, considered whether the plaintiffs-respondents (our clients) were within their rights when they mowed grass and removed small trees along a roadway that went through the defendant-appellant’s property. The parties’ maintenance rights had been outlined in a prior court-order issued by the Orange County Supreme Court. The defendant-appellant argued that our clients should have been held in contempt for mowing and removing trees, claiming that those actions were not allowed by the prior court-order. The defendant-appellant also requested that the appellate court find our clients in violation of Real Property Actions and Proceedings Law §861 for improper tree removal – an issue which was not raised in the underlying matter. Ms. Fierro argued that the lower-court’s determination, finding no contempt, should be upheld because our clients’ actions were not prohibited, and the lower-court’s decision was based on the convincing testimony of our clients’ witnesses and substantial evidence. Moreover, Ms. Fierro argued that the appellant’s contentions with regard to the tree removal issue were improperly raised for the first time on appeal and should not be considered. The Appellate Division, Second Department held exclusively in our clients’ favor, affirming the lower-court’s order, disregarding the tree removal issue and awarding costs to our clients.