Melvyn Goldsmith and Barbara Goldsmith vs Milton Pinsky and Elizabeth Pinsky and Related Cross-Complaint

6. Defendants' expert may also prepare a response to the Valencia report regarding the cost to plant 17' high 3' wide Ficus trees in the diameter [Mr. Stanton did not respond]; 7. The Special Master shall serve further recommendations after he reviews the reports. He has the discretion to make these recommendations with or without further arguments; and, 8. Each party shall pay 1⁄2 of the Special Master's fee within 10 days from the date of the Court's order. The Court ordered that the West Myoporum be maintained at 24'.

According to Mr. Stanton, Defendants were aware that the row of Myoporum trees were mature in 1998. He explained that the Myoporum were in place when he inspected the property in January 2025, and one had been cut down and one had fallen down when he revisited the property in December. He explained that the trees failed because of age and disease. As mentioned above, Defendants argue that they should only be ordered to replace 9' of the privacy canopy that was not protected by the Myoporum. They argue that since Plaintiff previously replaced the damaged Myoporum with 17 Ficus trees without using a crane, Plaintiff does not need a crane to plant the new trees since Plaintiff could access the area from Defendants' property.

Plaintiff argues that Mr. Stanton has no firsthand knowledge of the Myoporum condition before he first visited the property in 2022; did not provide any photos of the Myoporum in January and December 2025 supporting his claim that one had fallen, and another was cut down; that Plaintiff and his expert have no memory of a Myoporum being cut down during the relevant time period. Plaintiff argues that the privacy canopy relates to the WDP and not the Myoporum, that the Myoporum did not reach the 24' privacy level.

Discussion

The issue is how to protect Plaintiff's privacy if the WDP is removed while maintaining Defendants' view. Therefore, whether the Myoporum also provided privacy at some time is inapposite to this issue. If Defendants elect to have the WDP removed, they shall reimburse Plaintiff as follows: 1. Removal of the WDP: $6350.

2. Planting 10 Ficus Nitida: a. Labor, materials & dump fee: $28,000 b. 10 3' Wide Ficus: $18,090 Plaintiff estimates it will cost $2,476 per tree. Defendants estimate that it will cost $1,141.66 per tree. The average cost is $1,809; and c. Tree delivery fee: $2,500; and d. Crane service: $16,400 Given the years of animus surrounding this case, giving Plaintiff access to his landscape through Defendants' property is not a good idea.

Recommendations

The Special Master recommends that the Court order: 1. That Defendants notify the Court within 30 days from the date of the Court's order if they elect to have the WDP removed; and 2. That if Defendants elect to have the WDP removed, Defendants shall pay Plaintiff's arborist the above within 30 days after the Court's order; and 3. That Plaintiff shall pay his arborist any unpaid balance; and 4. Absent good cause, the arborist shall begin the work within 30 days after receipt of payment from Defendants; and, 5. That each party pay 1⁄2 of the SM's fee [$14.085 with $1,525 due from Plaintiff; $7,042 due from Defendants].

Goldsmith's Objections Filed 2/18/26; 15 pages; summarized: Goldsmith submits the following confirmations of and objections to the Special Master's Recommendations After Site Visit Re the WDP issued on February 5, 2026 ("Recommendations"). As part of the Court's Order of October 29, 2025, the parties were instructed to have their respective experts calculate the privacy diameter of the WDP. After the site visit on December 9, 2025, the parties' experts submitted their reports to the Special Master, who then issued the Recommendations.

Goldsmith confirms its agreement or objects to the Recommendations as follows in bold: Recommendations: 1. That Defendants notify the Court within 30 days from the date of the Court's order if they elect to have the WDP removed; a. Confirmed only as to the requirement that Defendants (Pinsky) notify the Court within 30 days from the date of the Court's order if they elect to have the WDP removed. Goldsmith objects to the fact that this Recommendation does not explain the effect of Pinsky not electing to have the WDP removed.

The Judgment provided that Goldsmith would have the choice of relocating or removing the WDP. As part of the Special Master proceedings and as confirmed by the Court, it has been determined that the WDP cannot be relocated, and therefore must be removed at Pinsky's cost. If Pinsky elects not to have the WDP removed, then it must remain unaltered in its current location, and cannot be subject to the Judgment, these Special Master proceedings, or any future claims or proceedings, in perpetuity.

2. That if Defendants elect to have the WDP removed, Defendants shall pay Plaintiff's arborist the above within 30 days after the Court's order; a. Goldsmith objects to this Recommendation as Pinsky must be ordered to pay Goldsmith's arborist in full before the work commences. Goldsmith further objects to the modified scope of work for replacement vegetation in the Recommendations. Goldsmith requests the Court overrule the modification, and order that the work set forth in his expert report (the December 26, 2025, Estimate by Valencia Tree and Landscape, also referred to herein as the "Valencia Estimate") is what must be done, and what Pinsky must pay for, if he elects to have the WDP removed.

A true and correct copy of the Valencia Estimate is attached to this Objection for the Court's reference as Exhibit 1. Considering the Special Master has ruled that Pinsky must pay to remove the WDP and install replacement privacy trees, and Goldsmith has provided an expert report regarding the scope and pricing of the work to be done in the form of the Valencia Estimate, it is contrary to the Judgment and outside the Special Master's authority to modify the Valencia Estimate. Under the Judgment and earlier Special Master Recommendations, Pinsky is required to pay for all trimming and removal of trees, which naturally includes the WDP removal and replacement vegetation.

It would be contrary to the purpose and intent of the Judgment were it interpreted such that Pinsky could: (1) elect to have work done, (2) provide bids lower than Goldsmith's arborist, and (3) force Goldsmith into the unfortunate choice of accepting a lower bid with a narrower scope or paying for a portion of the work himself. However, as currently written, the Recommendation adopts this contrary interpretation and forces Goldsmith to accept a reduced bid or pay the difference. Accordingly, the Court should overrule the modification of the Valencia Estimate and order that Pinsky, if he elects to have the WDP removed, must pay all costs under the Valencia Estimate to Goldsmith's arborist, in full, immediately upon making such election.

That Plaintiff shall pay his arborist any unpaid balance; b. Goldsmith objects because this Recommendation is unnecessary and should be deleted. Pinsky must pay the entire cost to Goldsmith's arborist in full before any work commences, and therefore there will never be an unpaid balance. Even if there were an unpaid balance, it would not be Goldsmith's responsibility to pay it.

3. Absent good cause, the arborist shall begin the work within 30 days after receipt of payment from Defendants; and, a. Confirmed.

4. That each party pay 1⁄2 of the SM's fee. a. Confirmed

Setting a Hearing Date On 2/23/26, on the Court's own motion, a hearing on the objections to the Special Master's Recommendation was set for March 4, 2026, at 10:00 a.m.

Pinskys Response Filed 2/25/26; 24 pages; summarized: The purpose of this proceeding was to determine, in the event the Pinskys requested the West Date Palm to be removed, what would be needed to be done to restore the privacy diameter for Goldsmith that had been provided by the West Date Palm. To make that determination, the Special Master conducted a site visit, with the parties, their attorneys, and their experts, to observe the West Date Palm, and requested the parties to submit expert reports as to what would be needed to restore that privacy diameter.

Goldsmith submitted a report from Valencia Tree & Landscape and the Pinskys submitted a report from Sheridan Stanton of Gosnell Tree & Landscape. The Court will recall that Mr. Stanton testified at the trial of this case, and "the Court found him credible and believes his firm would be an option to Goldsmith to do this work". The two experts had very different approaches to provide for that privacy diameter. The Valencia Report listed $90,462.00 in expenses to do the work, while Mr. Stanton listed $11,275.00 in expenses to do that work.

One significant difference between the two was that Valencia included as a cost $16,400.00 to use a crane service for the installation of the new trees and an additional $7,500.00 for steel plates and plywood to protect Goldsmith's driveway from the use of the crane. By contrast, Mr. Stanton did not include those costs, because the Pinskys had agreed to let the work be done from the Pinskys' side of the boundary between the two properties, such that no crane would be needed. Goldsmith would not agree to let the work be done from the Pinskys' side.

Goldsmith makes several objections to the Special Master's Recommendations, which recommend a total cost of $71,340.00. Initially, Goldsmith argues that the Pinskys should be required to pay for the work to be done prior to the work being done. However, that is exactly what is provided for in the Special Master's Recommendations; that is, the Special Master recommends that the Pinskys shall have 30 days to decide if they elect to have the West Date Palm removed and, if so, to pay Goldsmith's arborist to do the work, and that Goldsmith's arborist shall then begin to do the work within 30 days after receipt of that payment.

Thus, the Special Master has already recommended that the work be paid for in advance. Goldsmith then objects to certain of the adjustments made to the Valencia Report by the Special Master for the work to be done. First, with respect to the number of trees to be planted to provide for the privacy diameter, Goldsmith objects to the Special Master's Recommendations that only ten trees be required. Prior to the site visit, Valencia had submitted a Report stating that nineteen 36-inch box Ficus trees would be needed to provide for that privacy diameter.

At the site visit, it became apparent to all of the parties and to the Special Master that that number of trees was grossly exaggerated. As a result, the revised Valencia Report that was submitted to the Special Master stated that only twelve 36-inch Ficus trees would be needed to provide for the privacy diameter. By contrast, Mr. Stanton believed that only three 36-inch box Ficus would be needed to provide for the privacy diameter. Mr. Stanton stated that, based on his observation of the area surrounding the West Date Palm over the years, that Myoporum trees on either side of the West Date Palm had failed, and the gap in privacy was due in part to those lost Myoporum trees, not because of any loss that would be caused by the removal of the West Date Palm.

After considering these Reports and based on his site inspection, the Special Master rejected the argument regarding the Myoporum trees and concluded that ten 36-inch Ficus trees would be sufficient to provide for the privacy diameter. Second, with respect to the cost of obtaining 36-inch box Ficus trees, Valencia estimated that the cost would be $2,476.00 per tree, and Mr. Stanton estimated that the cost would be $1,141.66 per tree. The Special Master determined to use the average cost between those two of $1,809.00 per tree as a reasonable market rate for those trees.

Third, with respect to the crane service, the Special Master did not believe that, without Goldsmith agreeing to work from the Pinskys' side of the property, he should require that to be done given the relationship between the parties. However, while he allowed the $16,400.00 for the crane service as a cost to be paid by the Pinskys, he did not allow the $7,500.00 cost for steel plates and plywood to protect Dr. Goldsmith's driveway, which was reasonable because it was Goldsmith who was making the decision not to accept the Pinskys' offer to have the work done from the Pinskys' side of the boundary.

Although the Pinskys believe that Mr. Stanton's recommendations are sufficient to replace the privacy diameter, the conclusions reached by the Special Master in his Recommendations were reasonable. Goldsmith argues in his Objections that the Special Master had no authority to modify the Valencia estimate. However, the Judgment in this case specifically gives the Special Master the ability to evaluate such matters and to make a recommendation based on his findings. Specifically, Section 36 of the Judgment states that the work to be done on the Goldsmith property has to be done "'at a reasonable market rate".

Then, Section 40 of the Judgment provides that if the parties cannot agree on the nature and extent of work to be done, "each may retain their own Arborist who will assist them, and the Special Master make the determination of how the vegetation/tree(s) should be trimmed in the event of any disagreements." That is the procedure followed by the Special Master in this case. The Special Master was appointed to make recommendations when there is a disagreement between the parties, as there was in this case, and that is precisely what he did.

Finally, Goldsmith includes in his Objections a request that, if the Pinskys determine not to have the West Date Palm removed at this time, they may never do so in the future as that decision should be binding "in perpetuity. As a preliminary matter, that issue was never raised by Goldsmith before the Special Master. Therefore, the Special Master did not consider that request. Had Goldsmith wished to have that issue determined, he should have raised it with the Special Master before raising it for the first time in these Objections.

More significantly, a ruling in that regard would be inconsistent with the Judgment. Specifically, Sections 30-33 of the Judgment provide that, every two years, the Pinskys may request that the work set forth on Exhibit 169 (attached as Exhibit A to the Judgment) be done. The West Date Palm is listed on that Exhibit 169 as Item No. 4 on the Other Vegetation - Trimming List contained as part of that Exhibit. Thus, removal of the West Date Palm, along with the other work provided in that Exhibit 169, may be revisited every two years at the Pinskys' request and at their expense.

So, for example, if the Pinskys determine that they do not wish to have the West Date Palm removed at this time, they have the right at the next two-year event to make that determination, or at any future two-year event. One reason the Pinskys might decide to wait is that, given the cost of replacing the privacy diameter, the Pinskys may decide they do not want to have that work done at this time, but, in the future, if, for example, there is further growth of the West Date Palm, they may then determine that they want the work to be done then.

That is precisely the procedure outlined in the Judgment and there is no basis upon which to make any decision at this time binding "in perpetuity." For all of the foregoing reasons, the Pinskys request the Court to overrule the Objections raised by Goldsmith to the Special Master's Recommendations and to adopt the Special Master's Recommendations as the Order of the Court. Supported by exhibits.

Goldsmith's Reply Filed 2/26/26; summarized: Goldsmith submits a Reply to Pinskys Response to Goldsmith's Objections to the Special Master's Recommendations After Site Visit Re the WDP issued on February 5, 2026 The Pinskys initially claim that Goldsmith's request that the Pinskys pay the arborist prior to commencement of the work is unnecessary, because there is already a Recommendation to that effect. However, the Pinskys do not mention that Goldsmith actually requested that the Pinskys be ordered to pay the arborist in full, immediately upon electing to have the work done.

The current Recommendations give the Pinskys unnecessary time to delay if they decide to have the WDP removed and contemplate that Goldsmith would be responsible for some of the costs. Thus, contrary to the Pinsky's assertion, Goldsmith's request that the Recommendations be altered to require the Pinskys to pay the arborist in full immediately upon their electing to have the WDP removed is a valid objection. Were the current Recommendations left in place, the Pinskys could elect to have the WDP removed but then wait for up to 30 days to make a payment, which arguably could just be a partial payment or "down payment."

Furthermore, there is currently a Recommendation providing that Goldsmith must pay the arborist any unpaid balance. Thus, under the current Recommendations, the Pinskys could potentially pay Goldsmith's arborist $1.00 within 30 days of electing the have the WDP removed, and then force Goldsmith to pay the rest. Giving the Pinskys that type of power to impair Dr. Goldsmith's rights is entirely contrary to the Judgment. Thus, to prevent any perverse interpretation of the current Recommendations and the unjust results such interpretation would produce, it is critical that the Pinskys be ordered to pay Dr.

Goldsmith's arborist in full immediately upon electing to have the WDP removed. The Pinskys argue that the Special Master's reduction of the number of trees and the price thereof in the Valencia Estimate is reasonable. Goldsmith's position, as set forth later in his Objection, is that the Special Master has no authority to modify the Valencia Estimate. Assuming arguendo, that the Court considers whether the Special Master's reduction of the Valencia Estimate is reasonable, Goldsmith argues that it is not.

Goldsmith provided the Valencia Estimate, which is an actual quote for work to be performed by a real arborist working in town, based on actual prices of trees that the expert arborist would need to buy. The Pinskys' expert measured the privacy diameter at 32.4 feet, which would require at least 11 3-foot-wide trees to cover, and so reducing the Valencia Estimate from 12 to 10 trees does not appear to even be supported by the evidence. Pinskys' expert just cited tree prices without any formal bid or estimate, and therefore no indication they were based on information from suppliers.

Accordingly, the Court must overrule the Special Master's modification of the Valencia Estimate. The Pinskys argue that the Special Master intentionally removed the cost of steel and plywood plates to protect the driveway because Dr. Goldsmith "was making the decision not to accept the Pinskys' offer to have the work done from the Pinskys' side of the boundary." However, there is no record that Dr. Goldsmith ever made such a decision, and moreover it is ridiculous to imply that the Special Master was trying to punish Goldsmith for "not accepting the Pinskys' offer to have work done from the Pinskys' side" by forcing him to deal with a destroyed driveway.

The Special Master ordered the crane work because of the prior animus in the case and fear of further issues resulting from entry by Dr. Goldsmith's agents onto the Pinskys' property. The Special Master specifically states that "given the years of animus surrounding this case, giving Plaintiff access to his landscape through Defendants' property is not a good idea". Contrary to the Pinskys' assertion, the Special Master does not indicate that any alleged refusal to do the work via the Pinskys' property by Dr.

Goldsmith had any part in that reasoning. The Pinskys argue that contrary to Goldsmith's argument in the Objections, the Special Master has authority to modify the Valencia Estimate. The Pinskys cite section 36 of the Judgment providing that work on the Goldsmith Property must be done "at a reasonable market rate," and paragraph 40 which states that each party "may retain their own Arborist who will assist them, and the Special Master make the determination of how the vegetation/tree(s) should be trimmed in the event of any disagreements."

The Pinskys argue that these provisions permit the Special Master to modify the Valencia Estimate. However, sections 36 and 40 of the Judgment discuss only trimming, and not the costs thereof. Sections 25, 26, and 28 of the Judgment confirm that the Pinskys alone bear costs in connection with the WDP. Had either section 36 or 40 of the Judgment been intended to give the Special Master authority to cut the costs of arborist work, then the Judgment would have expressly stated that. Section 36 even states that the work will be done at a reasonable market rate, and so that section would be the perfect place for a provision that in the event of a disagreement on "reasonable market rate," the Special Master would have authority to determine the "reasonable market rate."

But alas, Section 36 does not include that language, and thus it does not give the Special Master that power. Section 40 begins by discussing how the Special Master can step in "if Pinsky and Goldsmith cannot agree on how the trimming required by this order related to the second or third or fourth lists should be performed so as to, on the one hand, maintain the Pinskys ocean view, and on the other hand maintain the look of the tree of vegetation . . ." Thus, section 40 was contemplating that it would be difficult to figure out what branches to cut, which hedges to trim, how many inches to take off, et cetera, and that the Special Master could make a determination if the expert arborists disagreed.

The type of "disagreement" contemplated was not regarding costs of work, but as to how to actually trim trees and vegetation to restore views without impairing privacy. Moreover, the Judgment provisions are secondary to the directive issued by the Special Master. That directive was to simply conduct a site visit to calculate the privacy diameter provided by the WDP, and then submit a report to the Special Master explaining the calculation process. Calculating the privacy diameter cannot be interpreted as being so broad an exercise as to include costs of installing trees to fill the gap.

That is an additional step after the calculation, and beyond the scope of the Special Master's directive. Finally, the Pinskys argue that they have the right to renew the WDP issue every two years if they do not elect to have it removed. This is an unreasonable interpretation of the Judgment, and it does not appear to be in anyone's favor to add another specter of looming uncertainty to a dispute that has been ongoing for over 8 years and went to trial 3.5 years ago. While hedges and vegetation grow and need to be trimmed, the WDP is a different situation.

The Judgment handled the WDP separately from the biennial trimming, the Judgment did not just allow the Pinskys to make an election for the WDP every two years. Paragraph 15 of the Judgment says the WDP cannot be trimmed and so it must be removed or relocated. Removing a large palm, and then replacing it with a Ficus, is a different task from trimming to keep vegetation or hedges at a certain height. Trimming and maintenance is part of ordinary gardening and tree care, and so it is not unreasonable to allow the Pinskys to identify necessary trims and cuts every two years.

The WDP work is much more comprehensive as has been shown by the extensive Special Master proceedings surrounding it. If the Pinskys' desired interpretation prevails and they decline to remove the WDP, they could just force everyone to go through the entire process all over again in two years, including new measurements, expert reports, and Special Master proceedings. That potential result demonstrates how absurd such an interpretation is. It is clearly inconsistent with the intent of the Judgment, and mechanics of its performance, to interpret it to give the Pinskys the right to elect every two years whether to remove the WDP.

In conclusion, the Pinskys' Response argues for unreasonable interpretations of the Judgment that would impair Goldsmith's rights, and only further indicates the need for modification of the Special Master Recommendations. To avoid such an unjust result, the Court should modify the Recommendations as requested in Dr. Goldsmith's Objections.

The Court's Conclusions

The Court finds the arguments made in this case by both sides are very well done and are thoughtful. The Court acknowledges and appreciates the hard work done on these issues of consequence. But after having tried the case, and weighing what the Court said in the judgment, and have read and considered the Special Master's recommendations, the Goldsmith objections, the Pinskys' response, and the Goldsmith reply, the Court will overrule the Goldsmith objections The Court finds the Pinskys' Response is very persuasive and carries the day on this matter.

Tentative Ruling: 815-830 East Tremont Associates, G.P. v. Adam White, et al. Tentative Ruling: 815-830 East Tremont Associates, G.P. v. Adam White, et al.