The Third Department of New York’s Appellate Division recently held that the lower court erred: (1) in granting summary judgment in plaintiff’s favor, because factual questions existed whether defendant timber company adversely possessed the disputed parcel for the requisite period, and (2) in declining to dismiss plaintiff’s claim for punitive damages, which is distinct from his claim for treble damages pursuant to the RPAPL. See Backus v. Lyme Adirondack Timberlands II, LLC, 144 A.D.3d 1454 (3d Dept. 2016). In the case, plaintiff and defendant owned adjoining forested parcels. Defendant retained an independent company (also named a defendant in this action) to manage certain property, and in 2007, the independent company cut the timber in the disputed area. Plaintiff filed a complaint against defendants seeking treble damages pursuant to RPAPL 861, punitive damages and quiet title to the disputed area. Defendants argued, among other things, that defendant adversely possessed the disputed area. Plaintiff moved for summary judgment on liability pursuant to RPAPL and defendants each sought summary judgment or, in the alternative, partial summary judgment dismissing plaintiff’s claims for treble and punitive damages. The lower court granted plaintiff’s motion for summary judgment, declaring plaintiff owner of the disputed area, and denied defendants’ motions. On appeal, defendants argued that, although plaintiff’s record title is not challenged, there are factual questions with regard to whether defendant adversely possessed the disputed parcel for the requisite period. The Third Department agreed and held that when considering the “acts of dominion and control over the premises that would appropriately be undertaken by owners of properties of similar character, condition and location,” defendant’s use of the property raises factual questions with regard to whether it has established ownership based on adverse possession. The Third Department further held that, to avoid treble damages under RPAPL 861(2), a defendant must prove by clear and convincing evidence that he had cause to believe the land was his own, or he had an easement or right of way across such land which permitted such action, or he had a legal right to harvest such land. In this case, in light of the evidence that defendant never surveyed the property and was aware of map discrepancies that revealed a gap in the boundary line when defendant marked the area to be cut, there were factual questions whether plaintiff is entitled to treble damages pursuant to RPAPL 861. However, the Third Department found that the lower court should have dismissed plaintiff’s claim for punitive damages, because punitive damages based on trespass may be warranted only if the plaintiff proves that the trespasser acted with actual malice involving an intentional wrongdoing, or that such conduct amount to a wanton, willful or reckless disregard of a plaintiff’s rights. The submissions in this case did not demonstrate that defendants’ activities rose to this level, and plaintiff’s damages, if at all, should be limited to those available pursuant to RPAPL 861.