Weinstein v. Varghese (Jan. 9, 2025)

Case details
Full caption
Albany County David A. Weinstein v. Anil Varghese and RINI ANIL
Country
United States
Jurisdiction
New York (NY)
Court
New York Court of Appeals
Decided
Jan. 9, 2025
Disposition
Motion Denied
Gully v VargheseFull Name: Gully v VargheseCitation: 2026 NY Slip Op 50864 (U)Date: May 12, 2026Gully v Varghese2026 NY Slip Op 50864(U)May 12, 2026Supreme Court, Albany CountyDavid A. Weinstein, J.Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.This opinion is uncorrected and will not be published in the printed Official Reports.Digest-Index Classification: Adjoining Landowners—Determination of BoundaryFrances T. Gully, Plaintiff,vAnil Varghese and RINI ANIL, Defendants.Supreme Court, Albany CountyDecided on May 12, 2026Index No. 900514-25We use cookies to improve the experience of our website. Bycontinuing to use our website, you consent to the use ofcookies. To understand more about how we use cookies,please see our .Accept & ContinuePrivacy Policy26/06/2026, 15:39Gully v Varghese :: 2026 :: New York Other Courts Decisions :: New York Case Law :: New York Law :: U.S. Law :: Justiahttps://law.justia.com/cases/new-york/other-courts/2026/2026-ny-slip-op-50864-u.html1/13
Telisky Law, PLLCAttorneys for DefendantsBy Trevor T. Telisky, Esq.358 Broadway, Suite 208Saratoga Springs, New York 12866Frances T. GullyPlaintiff, Pro SeDavid A. Weinstein, J.[*1]Plaintiff Frances Gully commenced this action by summons and complaint dated January9, 2025, seeking damages for an alleged unlawful entry by her neighbors, defendants AnilVarghese and Rini Anil, onto plaintiff's property located at 5826 Newman Road in theTown of Guilderland. The complaint asserts that during this incursion, defendantsdestroyed "more than 47 feet of wire fence and 87 feet of immature trees, vines, bushes,underwood, and undergrowth" (Complaint ¶¶ 1-5). Based on these allegations, Gully hasasserted causes of action for (1) violation of Real Property Actions and Proceedings Law("RPAPL") § 861 by the impermissible cutting, removing, injuring or destroying trees ortimber, and damaging lands thereon; (2) [*2]reparations; (3) compensation; (4) trebledamages; (5) trespass; and (6) conversion (id. ¶¶ 10-42).Defendants filed an answer with counterclaims for declaratory judgment and quieting oftitle. After being granted leave by the Court, they filed a first amended answer adding anadditional counterclaim for trespass.During the course of discovery, defendants served a bill of particulars, and plaintiff movedto strike it. By letter dated January 6, 2026, I extended the return date of that motion to thereturn date for any future motion for summary judgment, and indicated defendants couldaddress it in their papers opposing such motion. No party has addressed this issue furtherin their present motion papers.Discovery is now complete. Plaintiff has moved for summary judgment on her complaint,with defendants cross-moving for summary judgment on their cause of action for trespassFN1We use cookies to improve the experience of our website. Bycontinuing to use our website, you consent to the use ofcookies. To understand more about how we use cookies,please see our .Accept & ContinuePrivacy Policy26/06/2026, 15:39Gully v Varghese :: 2026 :: New York Other Courts Decisions :: New York Case Law :: New York Law :: U.S. Law :: Justiahttps://law.justia.com/cases/new-york/other-courts/2026/2026-ny-slip-op-50864-u.html2/13
against plaintiff and dismissal of all six of plaintiff's causes of action as a matter of law.Because of the particular issues that have arisen on plaintiff's motion, I will discuss theseapplications separately below.Plaintiff's MotionIn support of her motion, plaintiff submits her own affidavit, along with her property deedand a land survey prepared by Bethlehem Land Surveying, PLLC (Affidavit in Support ofPlaintiff's Motion for Summary Judgment, sworn to on January 30, 2026 ["Gully Aff"] 4,Exs 2 and 3 respectively), as well as a Memorandum of Law (Memorandum of Law fromFrances T. Gully, Plaintiff Pro Se, dated January 30, 2026 ["Pl MOL"]). In her affidavit,Gully asserts that on May 26, 2024, she caught the defendants ripping out her eight to tenfoot high bushes along the property line between plaintiff's and defendants' houses (id. 5). According to plaintiff, the bushes, underwood, and small trees that defendants cut andremoved were on Gully's property, on her side of a fence that was present when thedefendants purchased their property (id. 6). She states that she did not give defendantspermission to remove any of this vegetation from her property (id. 6). On this basis, sheseeks summary judgment on defendants' liability under RPAPL § 861 and for trespass (id. 16).In Gully's Memorandum of law, she claims that "[t]he Third Department has repeatedlyheld that proof of ownership, a survey, and unauthorized cutting establishes liability as amatter of law" (Pl MOL 3). In support of this contention, she cites to three purportedjudicial decisions: (1) Miller v Rau (174 AD3d 1131 [3d Dept 2019]); (2) Crammer v Spada(203 AD3d 1447 [3d Dept 2022]); and (3) Rockwell v Depart, 161 AD3d 1303 [3d Dept2018]). These three "cases" are cited by plaintiff for the same proposition in her reply todefendants' motion for summary judgment (Plaintiff's Reply Memorandum of Law inOpposition to Defendants' Cross Motion for Summary Judgment and in Further Support ofPlaintiff's Motion for Summary Judgment, dated [*3]March 25, 2026 ["Pl Reply MOL"] 4).Defendants filed opposition papers along with their cross motion. These included theaffidavits of both defendants, stating in pertinent part that there was a fence along theparties' boundary line, and that they had never "cut or removed any bushes which wereallegedly woven through the wire fence," and "never reached over onto Plaintiff's propertyand cut or removed any bushes, shrubbery, vines, undergrowth, etc." (Affirmations of AnilVerghese and Rini Anil, dated March 4, 2026 ¶¶ 12, 14).We use cookies to improve the experience of our website. Bycontinuing to use our website, you consent to the use ofcookies. To understand more about how we use cookies,please see our .Accept & ContinuePrivacy Policy26/06/2026, 15:39Gully v Varghese :: 2026 :: New York Other Courts Decisions :: New York Case Law :: New York Law :: U.S. Law :: Justiahttps://law.justia.com/cases/new-york/other-courts/2026/2026-ny-slip-op-50864-u.html3/13
After plaintiff made her reply submission, defendants filed a reply affirmation of counsel,in which they point out that the case citations set forth in plaintiff's filings do not exist, andargues that plaintiff's use of such false citations renders her entire summary judgmentmotion frivolous (Attorney Affirmation in Reply to Plaintiff's Opposition to Defendants'Cross-Motion for SJ, dated April 8, 2026 [Def Reply Aff] ¶¶ 6-8). They also note that theCourt may sanction plaintiff sua sponte under Part 130 of the Rules of the ChiefAdministrative Judge for using false case citations (id. ¶¶ 11-16).In response, plaintiff sought permission to submit a sur-reply so that she could be heard ondefendants' application for sanctions. I granted the motion, and in her sur-reply plaintiffacknowledged that the cases she purports to cite do not exist, but she asserts that sheincluded them without knowing that they were inaccurate (Sur-Reply, dated April 13, 2026["Sur-Reply"] ¶¶ 1-3). Plaintiff further contends that her use of non-existent case citationswas not completely without merit or otherwise frivolous under 22 NYCRR 130-1.1, anddefendants were not prejudiced thereby (id. ¶¶ 2-4). Thus, she argues that sanctions are notwarranted.Having considered the parties' submissions, I find that imposition of a sanction on plaintiffis appropriate here. Initially, the purportedly authoritative cases cited by plaintiff are,indeed, fabrications, and appear to be "hallucinations" created by an artificial intelligencetool. Although the case names appear to mimic those of actual parties to real rulings issuedby the Appellate Division, Third Department, the cases bearing these names concernentirely different matters, and the citations themselves are fake.The filing of legal paper with fabricated legal authorities is sanctionable as frivolousconduct (see Deutsche Bank National Trust Co. v Le Tennier, — AD3d —, 250 NYS3d 260,266 [3d Dept January 8, 2026] [the "submission of fabricated legal authorities iscompletely without merit in law and therefore constitutes frivolous conduct"]; see alsoCassata, supra ["Citing nonexistent case law or misrepresenting holdings of a case ismaking a false statement to a court"]). That is because, in signing and submitting a legalpaper to a court, a " 'party certifies that, to the best of that person's knowledge, informationand belief, formed after an inquiry reasonable under the circumstances . . . the presentationof the paper or the contentions therein are not frivolous' " (Deutsche Bank National TrustCo., 250 NYS3d at 267, quoting 22 NYCRR [*4]130-1.1a[b][1]).Ms. Gully notes in her sur-reply that she is self-represented, and asserts that "any sucherrors were inadvertent, unintentional, and not made in bad faith" (Sur-Reply 3). Butproceeding pro se does not excuse a party from the need to ensure that the legal authoritiesshe cites are genuine (see Augustin v Formula 3 Brooklyn Inc., 88 Misc 3d 1236[A], *4FN2We use cookies to improve the experience of our website. Bycontinuing to use our website, you consent to the use ofcookies. To understand more about how we use cookies,please see our .Accept & ContinuePrivacy Policy26/06/2026, 15:39Gully v Varghese :: 2026 :: New York Other Courts Decisions :: New York Case Law :: New York Law :: U.S. Law :: Justiahttps://law.justia.com/cases/new-york/other-courts/2026/2026-ny-slip-op-50864-u.html4/13
[Sup Ct Kings County 2025] ["It is of the utmost importance in preserving the integrity andfunctioning of the legal system that attorneys as well as pro se litigants not improperly useAI and comply by affirming the accuracy of the information provided to the Court"];Dowlah v Professional Staff Congress, 227 AD3d 609 [1st Dept 2024] [stating in regard toplaintiff's use of hallucinated AI citations, "[w]e caution plaintiff that his pro se status doesnot excuse his failure to check the legal citations that he offers to a court]).Indeed, while plaintiff says the citations were incorrect "unbeknownst to her" (see Sur-Reply 3), this is essentially an acknowledgment that she did not read or otherwise checkthe legal authorities she cited to the Court. While a pro se litigant may not have access tothe same legal research tools as a represented party, I take judicial notice of the fact that asimple Google search for the cases named would have revealed that cases bearing the samenames addressed entirely different issues. In any event, it is not proper for any party to relyupon and cite to the Court case citations for decisions they have not reviewed.Many harms flow when a party presents a court with false or fraudulent material in ajudicial proceeding, such as fake case citations. As one court has noted:"The opposing party wastes time and money in exposing the deception. The Court's time istaken from other important endeavors, [and when an attorney is involved] the client maybe deprived of arguments based on authentic judicial precedents. There is potential harmto the reputation of judges and courts whose names are falsely invoked as authors of thebogus opinions and to the reputation of the party attributed with fictional conduct. Itpromotes cynicism about the legal profession and the American judicial system"(Grymes Development Co. v Fodera, 88 Misc 3d 767, 771 [Sup Ct Richmond County 2025][denying summary judgment motion with prejudice for the use of false case citations]; seealso Deutsche Bank Trust Co., supra ["Courts throughout the country which have beenconfronted with AI-generated authorities have concluded that filing papers containinghallucinated cases and fabricated legal authorities may be sanctionable, as there are manyharms associated with the submission of fake cases that extend beyond merely wasting thetime and money of the opposing party, but also in taking up the court's resources toevaluate and resolve the deception"] [citations omitted]).A court has "inherent power to address actions which are meant to undermine the truth-seeking function of the judicial system and place in question the integrity of the courts andour system of justice" (Williams v Scafidi, 205 AD3d 1175, 1177 [3d Dept 2022] [internalquotation and citation omitted]). Here, the most appropriate consequence is to strike thepapers in which plaintiff cited fraudulent caselaw. Indeed, the only cases on which plaintiffFN3We use cookies to improve the experience of our website. Bycontinuing to use our website, you consent to the use ofcookies. To understand more about how we use cookies,please see our .Accept & ContinuePrivacy Policy26/06/2026, 15:39Gully v Varghese :: 2026 :: New York Other Courts Decisions :: New York Case Law :: New York Law :: U.S. Law :: Justiahttps://law.justia.com/cases/new-york/other-courts/2026/2026-ny-slip-op-50864-u.html5/13
relies in [*5]both her affirmative motion and in her opposition papers are those imaginedby AI. For that reason, I will deny her affirmative motion for summary judgment, andstrike the submissions that contain the false citations.I have considered whether additional or more significant sanctions are warranted, such asthe imposition of a monetary fine. Given the weight of the sanction imposed, plaintiff's prose status, and the caselaw on this issue, I find that the remedy imposed is sufficient.Plaintiff is cautioned, however, that she will be expected at trial to present legallycompetent evidence, and to the extent she cites legal authorities to the Court, they must beones she has reviewed, and not those produced by artificial intelligence.Defendants' Cross-MotionIn light of my determination above that I cannot consider those submissions of plaintiff'sthat include fraudulent citations, her opposition to defendants' cross motion is not beforeme, since it consists entirely of the legal memorandum infected with the false citations (seeCassata, supra; Grymes, supra). Nevertheless, in moving for summary judgmentdefendants must demonstrate that "the cause of action or defense shall be establishedsufficiently to warrant the court as a matter of law in directing judgment in the movingparty's favor" (CPLR 3212 [b]). In short, they must "make a prima facie showing ofentitlement to judgment as a matter of law, tendering sufficient evidence to demonstratethe absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324[1986]; see also Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824, 833[2014] [same]). Only if the moving party meets its burden, does the burden then shift to thenon-moving party to "establish the existence of material issues of fact which require a trialof the action" (Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012]). The fact that Ihave struck plaintiff's submissions does not relieve defendants of this burden (see Rivers vButterhill Realty, 145 AD2d 709, 710 [3d Dept 1988] [although opposition papers wererejected as late, "plaintiff was still required on her own to demonstrate her right tosummary judgment"]).As set forth below, defendants have not met this burden.On their cross motion, defendants seek the dismissal of each of plaintiff's causes of action(Attorney Affirmation in Opposition to Motion for SJ and in Support of Cross-Motion ofTrevor J. Telisky, Esq., dated March 4, 2026 ["Telisky Aff"] 3). But a review of theattorney affirmation in support and memorandum of law shows that its challenge toplaintiff's complaint is premised on the alleged lack of admissible proof in Gully's motionpapers regarding certain aspects of her case, including the type or value of the destroyedFN4We use cookies to improve the experience of our website. Bycontinuing to use our website, you consent to the use ofcookies. To understand more about how we use cookies,please see our .Accept & ContinuePrivacy Policy26/06/2026, 15:39Gully v Varghese :: 2026 :: New York Other Courts Decisions :: New York Case Law :: New York Law :: U.S. Law :: Justiahttps://law.justia.com/cases/new-york/other-courts/2026/2026-ny-slip-op-50864-u.html6/13
underwood, trees or timber, or the location of the property boundary lines (Defendants'Memorandum of Law in Opposition to Plaintiff's Motion for Summary Judgment and inSupport of Defendants' Cross Motion for Summary Judgment, dated March 6, 2026 ["DefMOL"] at 4-8). In particular, he notes the absence of any expert testimony in this regard(id. at 2-3).However, plaintiff's failure to put forward sufficient proof to support her motion forsummary judgment does not warrant a dismissal of the complaint in defendants' favor.Instead, it is defendants' burden on their cross motion to make a prima facie case showingthat they are entitled to judgment as a matter of law, before the Court must address thesufficiency of the plaintiff's submissions (see Vega, supra; 2261 Realty, LLC v Wang, 242AD3d 682, 685 [2d Dept 2025] [where plaintiff's submissions in support of summaryjudgment do not eliminate all questions of fact, such should be addressed at trial]; see alsoCaliber Home Loans, Inc. v Squaw, 190 AD3d 926 [2d Dept 2021] [denying unopposedmotion for summary judgment where movant failed to present a prima facie case]).In their motion papers, defendants submit affidavits from defendants Varghese and Anilaverring that "the area along our property boundary line contains a wire fence which hasbeen there since [defendants] purchased [their] home in February 2007," and defendants"never cut or removed any bushes which were allegedly woven through the wire fence," andnever reached over onto Plaintiff's property and cut or removed any bushes, shrubbery,vines, undergrowth, etc." (Varghese Aff ¶¶ 12, 14; Anil Aff ¶¶ 12, 14). But defendants do notargue for summary judgment on this basis. To the contrary, they assert that plaintiff cannotprove the boundaries of her property without expert testimony (see Def MOL 5-7). By thesame token, defendants cannot establish the absence of a trespass for purposes of thismotion without such testimony.As defendants do not submit proof showing that plaintiff's causes of action must fail —pointing instead to the shortcomings in plaintiff's motion — they have not shown that theyare entitled to summary judgment dismissing plaintiff's complaint.Defendants also seek summary judgment on their counterclaim against Gully for trespass(Def MOL at 9). In support of this relief, defendants rely on the following excerpt fromplaintiff's deposition transcript and argue that Gully's own testimony establishes hertrespass:Q: Even assuming — let me ask the question. Even assuming that the defendants wereliable to pay for the invoice price of the bushes of approximately $26,000, how do you getto $100,000?We use cookies to improve the experience of our website. Bycontinuing to use our website, you consent to the use ofcookies. To understand more about how we use cookies,please see our .Accept & ContinuePrivacy Policy26/06/2026, 15:39Gully v Varghese :: 2026 :: New York Other Courts Decisions :: New York Case Law :: New York Law :: U.S. Law :: Justiahttps://law.justia.com/cases/new-york/other-courts/2026/2026-ny-slip-op-50864-u.html7/13
A: It is more than $100,000.Q: How do you get to more than $100,000?A: I'll tell you how I get it to. Trespassing, you can sue for actual damages, compensatorydamages and punitive damages. Do you know the stress, the anxiety that they caused mefor all this, this whole time? Two summers, two springs, the whole winter going without[*6]this. I can't even go in my back yard. These people harassed me to no end in my ownback yard. Okay. Snapping pictures. What are they snapping pictures of me for? I can'teven go in my own yard. They go out and they just stand there and stare. It is the mostbizarre thing I have ever seen. And at your behest they went and they got pictures of metrespassing because I'm trying to keep my bushes so they won't do anything to them again.Q: So you admit you were trespassing in those photos?A: I admit that I went on that side on my strip. If I stepped over the line, it was an accident.Q: So you admit you were trespassing in those photos?A: I didn't state I was trespassing.Mr. Telisky: Could you read that back, please. (Whereupon previous testimony was readback.)A: I said if I was trespassing, if I trespassed, it was accidental. It wasn't intentional. I didnot admit that I did. I said if I did. It wasn't on purpose. It wasn't — it wasn't deceptive. Itwasn't like they intended to destroy something. I was at my fence line containing myproperty line so that they didn't butcher it.(Telisky Aff, Ex A at 68 -70; Def MOL 9-10).Defendants also append to their affirmations photographs and video depicting plaintiffwalking on the property between defendants' and Ms. Gully's respective residences(Affirmations of Anil Verghese and Rini Anil, dated March 4, 2026, ¶¶ 33- 38, Ex D.).As set forth in defendants' moving papers, "[t]he elements of a cause of action sounding intrespass are an intentional entry onto the land of another without justification orpermission, or a refusal to leave after permission has been granted but thereafterwithdrawn" (see Def MOL 9, citing Shrage v. Con Edison Co., 216 AD3d 1023, 1025 [2dDept 2023] [internal quotation and citation omitted]). Here, notwithstanding defendants'contention that Ms. Gully admitted to trespassing onto their property, plaintiff's depositionWe use cookies to improve the experience of our website. Bycontinuing to use our website, you consent to the use ofcookies. To understand more about how we use cookies,please see our .Accept & ContinuePrivacy Policy26/06/2026, 15:39Gully v Varghese :: 2026 :: New York Other Courts Decisions :: New York Case Law :: New York Law :: U.S. Law :: Justiahttps://law.justia.com/cases/new-york/other-courts/2026/2026-ny-slip-op-50864-u.html8/13
transcript does not establish such. Even if her ambiguous testimony can be read toacknowledge that she crossed on to defendants' property, she insisted repeatedly that itwould no have been intentional. Moreover, defendants failed to submit any competentevidence to establish the precise location of their property's boundary line which they claimwas crossed by plaintiff.As a result, defendants have not met their burden, and their motion must be denied as well.Motion to Strike Bill of ParticularsAs noted above, plaintiff also filed a motion to strike defendants' bill of particulars, thereturn date of which was made the same as that of the summary judgment motions. Exceptin plaintiff's initial filing — which is supported by an affirmation, there are no othersubmissions on [*7]this issue. Notwithstanding the absence of opposition papers, I denythe motion, as it is facially without merit.The motion is based on two grounds. First, plaintiff argues that the defendants' bill ofparticulars was untimely. As set forth in plaintiff's supporting affirmation, service of the billof particulars was due on May 19, 2025 according to the Preliminary Conference Order. Ms.Gully states that she agreed to extend the deadline several times until Friday, May 23, butdefendants did not serve the pleading until Tuesday, May 27, the next working day,although this final extension was not authorized by plaintiff, and the others were notapproved by the Court.The second ground for this relief is that the document was only verified by defendantVarghese, and not by Rini Anil. Plaintiff filed a "Notice of Rejection" on both grounds onNovember 20, 2025, and then on December 10, 2025, defendants served a new Bill ofParticulars verified by Ms. Anil as well (see NYSCEF No. 61, 66).Before addressing these arguments. I note that plaintiff sought to bring a motion forsanctions on this basis by letter dated May 27. I responded by letter order on May 29, inwhich I found such a motion "would not be appropriate at this time," given the "limitednature of the delay" and the fact that the Bill of Particulars had now been served (NYSCEFNo. 24). Plaintiff ultimately made the motion anyway.Putting this earlier ruling aside, there remains no basis for the relief sought by plaintiff onthe basis of the brief delay at issue. The remedy for a late bill of particulars is set forth inCPLR 3042(c), which states: " If a party fails to respond to a demand in a timely fashion orfails to comply fully with a demand, the party seeking the bill of particulars may move tocompel compliance, or, if such failure is willful, for the imposition of penalties pursuant toWe use cookies to improve the experience of our website. Bycontinuing to use our website, you consent to the use ofcookies. To understand more about how we use cookies,please see our .Accept & ContinuePrivacy Policy26/06/2026, 15:39Gully v Varghese :: 2026 :: New York Other Courts Decisions :: New York Case Law :: New York Law :: U.S. Law :: Justiahttps://law.justia.com/cases/new-york/other-courts/2026/2026-ny-slip-op-50864-u.html9/13
subdivision (d) of this rule." Paragraph (d) addresses "willful" refusal to comply with suchan order, and provides: "the court may make such final or conditional order with regard tothe failure or refusal as is just, including such relief as is set forth in section thirty-onehundred twenty-six of this chapter."In short, the Court has discretion as to whether to impose a sanction, and it may grant thekind of penalty sought by plaintiff, as is available under CPLR 3126, only in the event ofwillful refusal. Here, I am faced with a delay between May 19 and May 27, with the first fivedays agreed to by plaintiff, and the remainder encompassing Memorial Day weekend.Plaintiff has shown no prejudice, and the delay at issue does not remotely evince willfulmisconduct. While plaintiff points to various other delays by defendants, none of themsupport the kind of sanction sought here.I am left, then, with the claim is that the Bill of Particulars is unsigned by one of the parties(Affirmation in Support of Motion to Strike 6). As noted, that issue has now beenremedied. In any event, the verification by only one defendant provides no basis to strikethe bill of particulars. Although plaintiff cites CPLR 3042 for her argument, that statutesays nothing about a signing requirement. The only relevant statute is CPLR 3044, whichsays a bill of [*8]particulars must be verified if an earlier pleading was, or if the caseinvolves personal injury. Defendants' answer here was not verified, and so such verificationwas not required here. In any event, I see no CPLR provision which states that alldefendants must verify the document, and if there is such a requirement, this has now beendone with no prejudice to plaintiff.The motion to strike the bill of particulars is therefore denied.Accordingly, it is herebyORDERED that plaintiff's and defendants' motions for summary judgment are denied;and it is furtherORDERED that plaintiff's motion to strike defendants' bill of particulars is denied; and itis furtherORDERED that the trial shall proceed as scheduled on June 24, 2026.This constitutes the Decision & Order of the Court. The original Decision & Order is beingfiled electronically with the Court Clerk, with a copy e-mailed to defendants' counsel andplaintiff. The signing of this Decision and Order and e-filing on NYSCEF shall notFN5We use cookies to improve the experience of our website. Bycontinuing to use our website, you consent to the use ofcookies. To understand more about how we use cookies,please see our .Accept & ContinuePrivacy Policy26/06/2026, 15:39Gully v Varghese :: 2026 :: New York Other Courts Decisions :: New York Case Law :: New York Law :: U.S. Law :: Justiahttps://law.justia.com/cases/new-york/other-courts/2026/2026-ny-slip-op-50864-u.html10/13
constitute notice of entry under CPLR Rule 5513, and counsel is not relieved from theapplicable provisions of the CPLR respecting to filing and service of Notice of Entry.ENTERDated: May 12, 2026Albany, New YorkDavid A. WeinsteinActing Supreme Court JusticePapers Considered:1. Notice of Motion for Summary Judgment and Affidavit in Support of Plaintiff's Motionfor Summary Judgment, sworn to on January 30, 2026, with Exhibits annexed thereto,along with Memorandum of Law, dated January 30, 2026 and Statement of Material Facts,dated January 30, 2026.2. Notice of Cross-Motion for Summary Judgment and Attorney Affirmation in Oppositionto Motion for SJ and in Support of Cross-Motion of Trevor J. Telisky, Esq., dated March 4,2026, with Exhibit annexed thereto, along with Defendants' Memorandum of Law inOpposition to Plaintiff's Motion for Summary Judgment and in Support of Defendants'Cross Motion for Summary Judgment, dated March 6, 2026, and Affirmation of AnilVarghese, with Exhibits annexed thereto, and Affirmation Rini Anil, dated March 4, 202,along with Defendants' Response to Plaintiff's Response to Plaintiff's Statement of MaterialFacts, dated March 4, 2026.3. Plaintiff's Reply Memorandum of Law in Opposition to Defendants' Cross Motion forSummary Judgment and in Further Support of Plaintiff's Motion for Summary Judgment,dated March 25, 2026, with Exhibits annexed thereto, and Plaintiff Pro Se's Response toDefendants' Response to Plaintiff's Statement of Material, dated March 25, 2026.4. Attorney Affirmation in Reply to Plaintiff's Opposition to Defendants' Cross-Motion forSJ of Trevor J. Telisky, Esq., dated April 8, 2026, with Exhibits annexed thereto.5. Plaintiff's Sur-Reply, dated April 13, 20206.FootnotesFootnote 1We use cookies to improve the experience of our website. Bycontinuing to use our website, you consent to the use ofcookies. To understand more about how we use cookies,please see our .Accept & ContinuePrivacy Policy26/06/2026, 15:39Gully v Varghese :: 2026 :: New York Other Courts Decisions :: New York Case Law :: New York Law :: U.S. Law :: Justiahttps://law.justia.com/cases/new-york/other-courts/2026/2026-ny-slip-op-50864-u.html11/13
Section RPAPL § 861(a) is the basis for this cause of action, and provides as follows:"If any person, without the consent of the owner thereof, cuts, removes, injures or destroys,or causes to be cut, removed, injured or destroyed, any underwood, tree or timber on theland of another or on the common or other land of a city, village, town or county, ordamages the land in the course thereof, an action may be maintained against such personfor treble the stumpage value of the tree or timber or two hundred fifty dollars per tree, orboth and for any permanent and substantial damage caused to the land or theimprovements thereon as a result of such violation. Such reparations shall be of such kind,nature and extent as will reasonably restore the lands affected by the violation to theircondition immediately before the violation and may be made by physical restoration ofsuch lands and/or by the assessment of monetary payment to make such restoration."Footnote 2At this point in the briefing, the only thing left for defendants to file was a reply submissionon their own cross motion. To the extent they raised the issue of the false citations late,however, that is of no moment. Plaintiff was given the opportunity to answer these chargesin a sur-reply, and in any event the Court may raise this issue sua sponte, so it is properlybefore me regardless of the manner in which it was raised (see Cassata v Michael MacrinaArchitect, P.C., — Misc 3d —, 250 NYS3d 778, 785 [Sup Ct Suffolk County January 27,2026] [imposing sanctions for fraudulent citations on Court's own motion])Footnote 3No sanction was imposed on the pro se litigant in this case, but since the Appellate Divisionaffirmed the dismissal of his complaint, the only potential sanction available was amonetary penalty.Footnote 4As the Third Department has made clear, a party's "choice to proceed pro se ha[s] no effecton [her] burden to present legally competent evidence," and "a pro se litigant acquires nogreater right than any other litigant and will be held to the same standards of proof as thosewho are represented by counsel" (Duffen v State, 245 AD2d 653, 653-654 [2d Dept 1997][cleaned up]). At the same time, "courts will routinely afford pro se litigants some latitude"(id.). I believe this balance is properly struck by (1) holding plaintiff to the same standardsof conduct as any other party, while (2) taking her unrepresented status into account inWe use cookies to improve the experience of our website. Bycontinuing to use our website, you consent to the use ofcookies. To understand more about how we use cookies,please see our .Accept & ContinuePrivacy Policy26/06/2026, 15:39Gully v Varghese :: 2026 :: New York Other Courts Decisions :: New York Case Law :: New York Law :: U.S. Law :: Justiahttps://law.justia.com/cases/new-york/other-courts/2026/2026-ny-slip-op-50864-u.html12/13
determining the appropriate sanction. As the above should make clear, however, her pro sestatus does not relieve her of following the rules of evidence, or alter her burden of proof attrial. I note in this regard plaintiff's statement that she has been "unable to secure anArborist/Forester" to attest to the value of her lost plants, on which basis she asks that I"thoroughly consider the other avenues of relief RPAPL 861 and Trespass allow mentionedabove and in Plaintiff Pro Se's Complaint and provide the relief she requested and deserve"(Gully Aff 18). Whatever relief plaintiff is entitled to will be determined by the evidenceintroduced at trial and the law governing plaintiff's causes of action, and her pro se statusdoes not relieve her of the need to support her claims with competent evidence.Footnote 5I note that the relief allowed under CPLR 3042 is directed at compelling production of abill of particulars. Since the purpose of such a document is to "amplify the pleadings, limitthe proof and prevent surprise at trial" ((Harris v Ariel Transp. Corp., 37 AD3d 308, 309[1st Dept 2007] [citation omitted]), it is unclear what would be gained by striking such adocument. Be that as it may, there is no basis for any sanction here.Some case metadata and case summaries were written with the help of AI, which can produceinaccuracies. You should read the full case before relying on it for legal research purposes.We use cookies to improve the experience of our website. Bycontinuing to use our website, you consent to the use ofcookies. To understand more about how we use cookies,please see our .Accept & ContinuePrivacy Policy26/06/2026, 15:39Gully v Varghese :: 2026 :: New York Other Courts Decisions :: New York Case Law :: New York Law :: U.S. Law :: Justiahttps://law.justia.com/cases/new-york/other-courts/2026/2026-ny-slip-op-50864-u.html13/13
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