Cassata v. New York New England Exchange

CourtNew York Supreme Court Appellate Division
Writing for the CourtBefore ROSENBERGER
Citation250 A.D.2d 491,673 N.Y.S.2d 124
Decision Date21 May 1998
Parties, 1998 N.Y. Slip Op. 4820 Joseph CASSATA, et al., Plaintiffs-Appellants, v. NEW YORK NEW ENGLAND EXCHANGE, Defendant-Respondent.

Page 124

673 N.Y.S.2d 124
250 A.D.2d 491, 1998 N.Y. Slip Op. 4820
Joseph CASSATA, et al., Plaintiffs-Appellants,
v.
NEW YORK NEW ENGLAND EXCHANGE, Defendant-Respondent.
Supreme Court, Appellate Division,
First Department.
May 21, 1998.

Michael Drezin, for plaintiffs-appellants.

Page 125

Guy Miller Struve, for defendant-respondent.

Before ROSENBERGER, J.P., and ELLERIN, WALLACH, WILLIAMS and SAXE, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, Bronx County (Kenneth Thompson, Jr., J.), entered on or about May 19, 1997, which, inter alia, held that plaintiff's damages for trespass are to be measured by the value of the right of way to defendant, unanimously affirmed, with costs.

Plaintiffs, alleging trespass upon their real property, a small commercial building located on Westchester Square in the Bronx, seek damages of over $30 million based upon defendant's placement and maintenance of a telephone cable along a rear wall of the building, after plaintiffs had allegedly withdrawn a license for it that had been granted by a previous owner.

Upon a motion for summary judgment made by each side, the IAS court granted summary judgment to plaintiffs on the issue of liability for the improper incursion of the cable, but directed that plaintiffs' damages be measured "not by the gross revenues generated by the usage of the telephone, but instead, by the value of the right of way to defendant," citing Bunke v. New York Telephone Co., 110 App.Div. 241, 97 N.Y.S. 66, affd. 188 N.Y. 600, 81 N.E. 1161. The court also ruled that the trier of fact should calculate the amount of damages beginning at a reasonable time subsequent to plaintiffs' demand that the cable be removed, after determining when such a demand was made.

Plaintiffs appeal both the holding as to the applicable measure of damages, and the determination that there is a question of fact as to the date from which damages should be measured.

We affirm. Initially, the identical issue was presented in Bunke v. New York Telephone Co., 110 A.D. 241, 97 N.Y.S. 66, affd. without opinion, 188 N.Y. 600, 81 N.E. 1161. There, the telephone company had procured several thousand licenses to attach wires to rooftops. This Court held that the licenses had been revoked by the conveyance of the premises by the licensor, and that New York Telephone Co. was therefore trespassing. In addressing the measure of damages, this Court stated, in language that directly applies to the facts and equities of this case:

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3 practice notes
  • Am. Infertility of N.Y., P.C. v. Verizon N.Y. Inc., 159892/2015
    • United States
    • United States State Supreme Court (New York)
    • December 10, 2020
    ...owner may 70 Misc.3d 1005 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 plainti......
  • Neustein v. Estate of Neustein (In re Neustein)
    • United States
    • New York Supreme Court — Appellate Division
    • July 11, 2012
    ...of the subject real property while the property was wrongfully withheld from her ( seeRPAPL 601; Cassata v. New York New England Exch., 250 A.D.2d 491, 492, 673 N.Y.S.2d 124;see also Baker v. Drake, 53 N.Y. 211;Maracina v. Shirrmeister, 105 A.D.2d 672, 673, 482 N.Y.S.2d 14;Miceli v. Riley, ......
  • Cmty. Counseling & Mediation Serv. v. Chera
    • United States
    • New York Supreme Court Appellate Division
    • November 23, 2010
    ...of liability, that exceed the types of damages that plaintiff could recover for trespass ( see Cassata v. New York New England Exch., 250 A.D.2d 491, 492, 673 N.Y.S.2d 124 [1998] [trespass damages are ordinarily "limited to the value of the use and occupation to the owner or the damages to ......
3 cases
  • Am. Infertility of N.Y., P.C. v. Verizon N.Y. Inc., 159892/2015
    • United States
    • United States State Supreme Court (New York)
    • December 10, 2020
    ...owner may 70 Misc.3d 1005 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 plainti......
  • Neustein v. Estate of Neustein (In re Neustein)
    • United States
    • New York Supreme Court — Appellate Division
    • July 11, 2012
    ...of the subject real property while the property was wrongfully withheld from her ( seeRPAPL 601; Cassata v. New York New England Exch., 250 A.D.2d 491, 492, 673 N.Y.S.2d 124;see also Baker v. Drake, 53 N.Y. 211;Maracina v. Shirrmeister, 105 A.D.2d 672, 673, 482 N.Y.S.2d 14;Miceli v. Riley, ......
  • Cmty. Counseling & Mediation Serv. v. Chera
    • United States
    • New York Supreme Court Appellate Division
    • November 23, 2010
    ...of liability, that exceed the types of damages that plaintiff could recover for trespass ( see Cassata v. New York New England Exch., 250 A.D.2d 491, 492, 673 N.Y.S.2d 124 [1998] [trespass damages are ordinarily "limited to the value of the use and occupation to the owner or the damages to ......

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