Am. Infertility of N.Y., P.C. v. Verizon N.Y. Inc.

• Decision Date: 10 December 2020
• Docket Number: 159892/2015
• Court: New York Supreme Court
• Parties: AMERICAN INFERTILITY OF NEW YORK, P.C. d/b/a Center for Human Reproduction, and 21 East 69th Street LLC, Plaintiffs v. VERIZON NEW YORK INC., Defendant

70 Misc.3d 1001

138 N.Y.S.3d 820

AMERICAN INFERTILITY OF NEW YORK, P.C. d/b/a Center for Human Reproduction, and 21 East 69th Street LLC, Plaintiffs

v.VERIZON NEW YORK INC., Defendant

159892/2015

Supreme Court, New York County, New York.

Decided on December 10, 2020

For Plaintiffs, Steven M. Lester Esq., La Reddola Lester & Associates, LLP, 600 Old Country Road, Garden City, NY 11530

For Defendant, John T. Van Der Tuin Esq., Smith, Gambrell & Russell, LLP, 1301 6th Avenue, New York, NY 10019

Lucy Billings, J.

I. BACKGROUND

In this action for trespass on commercial premises, plaintiffs American Infertility of New York, P.C. d/b/a Center for Human Reproduction (CHR), and 21 East 69th Street LLC are, respectively, the occupant and the owner of land and a building at 21 East 69th Street, New York County. Aff. of Norbert Gleicher M.D. in Supp. ¶¶ 1-3. Plaintiffs claim that defendant Verizon New York Inc. committed a continuing trespass by installing and maintaining an unauthorized telecommunications cable on the exterior of the building and along the top of a fence in the yard at the premises. Id. ¶ 2. Plaintiffs allege that they first learned of defendant's cable in August 2015 while inspecting the premises to plan a construction project to expand their building. Id. ¶¶ 14-17. They claim that defendant's failure to remove the cable timely, until December 2015, delayed the project and caused them financial losses. Id. ¶¶ 18-22. Defendant claims that plaintiffs were responsible for the delay by preventing defendant from removing the cable sooner.

Plaintiffs and defendant separately move for partial summary judgment. C.P.L.R. § 3212(b) and (e). Plaintiffs seek summary judgment on defendant's liability for a trespass. Defendant seeks summary judgment dismissing categories of damages set forth in the complaint and in a compilation of damages that plaintiffs produced during disclosure.

II. STANDARDS FOR SUMMARY JUDGMENT

To obtain summary judgment, the moving parties must make a prima facie showing of entitlement to judgment as a matter of law through admissible evidence, eliminating all material issues of fact. C.P.L.R. § 3212(b) ; Friends of Thayer Lake LLC v. Brown , 27 N.Y.3d 1039, 1043, 33 N.Y.S.3d 853, 53 N.E.3d 730 (2016) ; Nomura Asset Capital Corp. v. Cadwalader, Wickersham & Taft LLP , 26 N.Y.3d 40, 49, 19 N.Y.S.3d 488, 41 N.E.3d 353 (2015) ; Voss v. Netherlands Ins. Co. , 22 N.Y.3d 728, 734, 985 N.Y.S.2d 448, 8 N.E.3d 823 (2014) ; Vega v. Restani Constr. Corp. , 18 N.Y.3d 499, 503, 942 N.Y.S.2d 13, 965 N.E.2d 240 (2012). Only if the moving parties satisfy this standard, does the burden shift to the opposing parties to rebut that prima facie showing, by producing evidence, in admissible form, sufficient to require a trial of material factual issues. De Lourdes Torres v. Jones , 26 N.Y.3d 742, 763, 27 N.Y.S.3d 468, 47 N.E.3d 747 (2016) ; Nomura Asset Capital Corp. v. Cadwalader Wickersham & Taft LLP , 26 N.Y.3d at 49, 19 N.Y.S.3d 488, 41 N.E.3d 353 ; Morales v. D & A Food Serv. , 10 N.Y.3d 911, 913, 862 N.Y.S.2d 449, 892 N.E.2d 842 (2008) ; Hyman v. Queens County Bancorp, Inc. , 3 N.Y.3d 743, 744, 787 N.Y.S.2d 215, 820 N.E.2d 859 (2004). If the moving parties fail to meet their initial burden, the court must deny summary judgment despite any insufficiency in the opposition. Voss v. Netherlands Ins. Co. , 22 N.Y.3d at 734, 985 N.Y.S.2d 448, 8 N.E.3d 823 ; Vega v. Restani Constr. Corp. , 18 N.Y.3d at 503, 942 N.Y.S.2d 13, 965 N.E.2d 240 ; Smalls v. AJI Indus., Inc. , 10 N.Y.3d 733, 735, 853 N.Y.S.2d 526, 883 N.E.2d 350 (2008) ; JMD Holding Corp. v. Congress Fin. Corp. , 4 N.Y.3d 373, 384, 795 N.Y.S.2d 502, 828 N.E.2d 604 (2005).

The parties stipulated that the court consider all their exhibits as authenticated and admissible for purposes of their motions for partial summary judgment. In evaluating the evidence for purposes of the parties' motions, the court construes the evidence in the light most favorable to the opponents. Stonehill Capital Mgt. LLC v. Bank of the W. , 28 N.Y.3d 439, 448, 45 N.Y.S.3d 864, 68 N.E.3d 683 (2016) ; De Lourdes Torres v. Jones , 26 N.Y.3d at 763, 27 N.Y.S.3d 468, 47 N.E.3d 747 ; William J. Jenack Estate Appraisers & Auctioneers, Inc. v. Rabizadeh , 22 N.Y.3d 470, 475, 982 N.Y.S.2d 813, 5 N.E.3d 976 (2013) ; Vega v. Restani Constr. Corp. , 18 N.Y.3d at 503, 942 N.Y.S.2d 13, 965 N.E.2d 240.

III. PLAINTIFFS' MOTION

As set forth above, plaintiffs' motion seeks summary judgment on defendant's liability for plaintiffs' continuing trespass claim. To prevail on this claim, plaintiffs must establish the "intentional entry onto the property of another without justification or permission," Schwartz v. Hotel Carlyle Owners Corp. , 132 A.D.3d 541, 542, 20 N.Y.S.3d 341 (1st Dep't 2015) ; Volunteer Fire Assn. of Tappan, Inc. v. County of Rockland , 101 A.D.3d 853, 855, 956 N.Y.S.2d 102 (2d Dep't 2012), or "a refusal to leave after permission has been granted but thereafter withdrawn." Volunteer Fire Assn. of Tappan, Inc. v. County of Rockland , 101 A.D.3d at 855, 956 N.Y.S.2d 102. Plaintiffs claim that defendant invaded plaintiffs' exclusive possession of their real property by locating on their land a telecommunications cable that served only premises other than plaintiffs' premises, intentionally, and without legal justification or plaintiffs' permission. Defendant does not seek dismissal of plaintiffs' trespass claim, but opposes summary judgment on the claim based on material factual disputes whether defendant was a licensee, rather than a trespasser, and whether defendant relocated its cable within the reasonable period to which defendant was entitled as a licensee after plaintiffs requested the cable's removal.

A license on real property "grants the licensee a revocable non-assignable privilege to do one or more acts upon the land of the licensor," acts that would amount to a trespass absent such permission, but without granting any interest in the property. Ark Bryant Park Corp. v. Bryant Park Restoration Corp. , 285 A.D.2d 143, 150, 730 N.Y.S.2d 48 (1st Dep't 2001) ; Roman Catholic Church of Our Lady of Sorrows v. Prince Realty Mgt., LLC , 47 A.D.3d 909, 911, 850 N.Y.S.2d 569 (2d Dep't 2008). The owner or landlord of real property may revoke a license at will and without cause. Z. Justin Mgt. Co., Inc. v. Metro Outdoor, LLC , 137 A.D.3d 577, 578, 28 N.Y.S.3d 31 (1st Dep't 2016) ; American Jewish Theatre v. Roundabout Theatre Co. , 203 A.D.2d 155, 156, 610 N.Y.S.2d 256 (1st Dep't 1994).

Defendant's showing of its status as a licensee thus would prevent plaintiffs from maintaining a claim for trespass due to acts for which plaintiffs granted a license. Leavitt Enter., Inc. v. Two Fulton Sq., LLC , 181 A.D.3d 662, 663-64, 120 N.Y.S.3d 363 (2d Dep't 2020). Defendant may establish licensee status with evidence that plaintiff owner or its agent orally granted permission or reasonably appeared to acquiesce to defendant's entry onto plaintiffs' real property. Corsello v. Verizon NY Inc. , 18 N.Y.3d 777, 791-92, 944 N.Y.S.2d 732, 967 N.E.2d 1177 (2012). See Curwin v. Verizon Communications (LEC) , 35 A.D.3d 645, 646, 827 N.Y.S.2d 256 (2d Dep't 2006). Once plaintiff owner or its agent revoked any license, moreover, as a former licensee defendant was entitled to a reasonable amount of time to comply with the removal request, after which the owner may recover only the value of the use of the real property to the licensee. Cassata v. New York New England Exch. , 250 A.D.2d 491, 491-92, 673 N.Y.S.2d 124 (1st Dep't 1998) ; Curwin v. Verizon Communications (LEC) , 35 A.D.3d at 646, 827 N.Y.S.2d 256.

Although plaintiffs insist that defendant's senior manager, Anthony Montemarano, "admitted that Verizon did not have an easement or right of way giving Verizon permission to place the trespassing cable on Plaintiffs' Property," Aff. of Steven M. Lester in Supp. ¶ 8, Montemarano's own affidavit denies any such admission. Montemarano admits only that defendant does not possess any written permission, but explains that, while defendant prefers to obtain written permission to affix telecommunications cables to buildings owned by nonclients, "Oral permission is sometimes given and accepted. Verizon never installs equipment on private property without permission." Aff. of Anthony Montemarano in Opp'n ¶ 3.

Norbert Gleicher M.D., a managing member of 21 East 69th Street and the president of CHR, attests that he "never authorized or gave permission to Verizon or anyone else (such as a Verizon vendor or subcontractor) to locate the telephone cable on the Property." Gleicher Aff. in Supp. ¶ 24. Neither Dr. Gleicher nor any other witness attests that no one else from either plaintiff gave permission to defendant to locate the cable on plaintiffs' premises or, if no one else was authorized to give that permission, that defendant would have known that someone who gave permission was unauthorized.

Thus, to the extent that Dr. Gleicher's affidavit, along with the absence of documentary evidence, indicates that neither plaintiff ever granted a license to defendant, Montemarano's affidavit that Verizon never installs equipment on private property without permission raises a factual question whether Verizon was a licensee at the premises. This question turns on the witnesses' credibility, which the court may not resolve via summary judgment. Alvarado v. Grocery , 183 A.D.3d 447, 121 N.Y.S.3d 870 (1st Dep't 2020) ; Evans v. Acosta , 169 A.D.3d 438, 439, 92 N.Y.S.3d 280 (1st Dep't 2019) ; Capers v. New York City Hous. Auth. , 161 A.D.3d 629, 630, 78 N.Y.S.3d 28 (1st Dep't 2018) ; Genesis Merchant Partners, L.P. v. Gilbride, Tusa, Last & Spellane, LLC , 157 A.D.3d 479, 485, 69 N.Y.S.3d 30 (1st Dep't 2018).

Evidence demonstrating that the telecommunications cable was readily visible to plaintiffs for years before August 2015 further supports the inference of their permission. The cable was hung on the exterior of plaintiffs' building...