Cisco v. Verizon N.Y., Inc.
| Docket Number | Index No. 510538/2019,Motion Seq. Nos. 4,5 |
| Decision Date | 20 December 2023 |
| Citation | 2023 NY Slip Op 34514 (U) |
| Parties | MELISSA G. CISCO & SHANNON CISCO-MIDGETTE, Plaintiffs, v. VERIZON NEW YORK INC., and VERIZON COMMUNICATIONS, INC., Defendants. |
| Court | New York Supreme Court |
Unpublished Opinion
DECISION/ORDER
Recitation, as required by CPLR 2219(a), of the papers considered in the review of defendants' motion for summary judgment and plaintiffs' cross motion for leave to amend the complaint
Papers - NYSCEF Doc.
Notice of Motion, Affirmations and Exhibits Annexed ................. 85-96
Notice of Cross-Motion, Affirmations and Exhibits Annexed 99-138
Reply Affirmations 139-144
Upon the foregoing cited papers, the Decision/Order on these motions is as follows:
Plaintiffs are the co-owners of 493 Madison Street, Brooklyn, NY. The property is a multiple dwelling. They have been co-owners since 2003. In 1998, a Certificate of Occupancy was issued by the NYC Department of Buildings which states that the premises has four apartments. The complaint was filed on May 11, 2019. The Note of Issue is due to be filed in a few weeks.
The gravamen of the complaint is that on or about March 7, 2015, defendants replaced a telephone pole in the backyard of plaintiffs' property without permission. Plaintiff Melissa Cisco avers in her affidavit in opposition to defendants' motion that "Verizon does not possess and never obtained an Easement, Right-of-Way or License to use the back- yard-pole located at 493 Madison Street to provide Verizon service to Verizon customers in the vicinity of 493 Madison Street" [Doc 100 ¶13]. The complaint was prepared as a pro se complaint, although co-plaintiff Melissa Cisco is an attorney. It asserts fifteen causes of action, for, inter alia, a violation of GBL §349, for inverse condemnation, fraud, unjust enrichment, for a permanent injunction, and for continuing trespass. Plaintiffs seek monetary damages as well as punitive damages.
In motion sequence #4, defendants seek summary judgment dismissing the complaint in its entirety. With regard to defendant Verizon Communications, Inc., counsel provides an affidavit from an attorney familiar with the structure of the company, who avers that [Doc 95]. Counsel provides copies of requests for plaintiffs to discontinue the action as against this entity, which plaintiffs refused to agree to. The opposition provided by plaintiffs [Doc 100] does not address this branch of the motion. Accordingly, this branch of defendants' motion is granted without opposition, and the action is dismissed as against Verizon Communications Inc.
With regard to the claims asserted against Verizon New York Inc., defendants' counsel avers that "Verizon did not unlawfully take or trespass upon plaintiff's property, and (all of the plaintiffs' other claims) . . . are time barred by the statute of limitations" [Doc 86 ¶2]. Counsel summarizes the deposition testimony of Verizon's witness in his affirmation. He avers that the testimony was that the pole had been initially installed in 1936. It was damaged during Superstorm Sandy. Plaintiffs called Verizon and asked them to fix the pole. Plaintiff Melissa Cisco testified that she did call Verizon to repair the pole [Doc 89 Page 55]. Defendants' counsel avers that the pole was replaced with a new one in March of 2015, with plaintiffs' permission and in plaintiffs' presence. Photos are provided at Doc 91, which indicate at least five Verizon workers with hardhats were working on this task. As it is a fenced backyard, someone had to have granted them access to the backyard. Plaintiff Melissa Cisco acknowledges in her testimony that she signed the consent form, but claims she did not read it before signing it [Doc 89 Page 65]. She is an attorney who is admitted to practice in the State of New York. She should have read the document. It [Doc 88 Page 9] states:
"Received from Verizon . . . in consideration of which the undersigned hereby grants unto said Company, its successors and assigns, the permanent right, privilege and authority to construct, reconstruct, relocate, replace, operate, repair, maintain and at its pleasure remove from the following facilities: [space for writing, which says in handwriting "replaced cracked pole with cable and terminal thereon in rear yard"] upon the property which the undersigned owns or in which the undersigned has an interest situated [handwritten 493 Madison Street"] in the borough of Brooklyn… . It is dated 3/7/15 and signed by Melissa Cisco.
In opposition to the motion and in support of her cross motion (Doc 100], her affidavit does not address the statute of limitations or the timeliness of her action. Therefore, the court must determine whether the defendants make a prima facie case for summary judgment dismissing the complaint, based on, inter alia, the statute of limitations. "To dismiss a cause of action pursuant to CPLR 3211 (a) (5) on the ground that it is barred by the applicable statute of limitations, a defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the action has expired" (Jacobson Dev. Group, LLC v Yews, Inc., 174 A.D.3d 868, 869 [2d Dept 2019]).
The statute of limitations for violations of GBL §349 and the remainder of the claims asserted other than fraud, to the extent they constitute actionable causes of action, is three years. Thus, as the pole was installed in March of 2015, and this action was commenced in May of 2019, all of the plaintiffs' claims other than fraud are time barred. The statute of limitations for violations of GBL §349 is also three years. See Fownes Bros & Co v JP Morgan Chase, 92 A.D.3d 582 [1st Dept 2012].
Unjust enrichment lies as a quasi-contract claim and "contemplates an obligation imposed by equity to prevent injustice, in the absence of an actual agreement between the parties. Unjust enrichment claims are rooted in the equitable principle that a person shall not be allowed to enrich themselves unjustly at the expense of another, and the essential inquiry in any action for unjust enrichment is whether it is against equity and good conscience to permit the defendant to retain what is sought to be recovered. To recover under a theory of unjust enrichment, a litigant must show that (1) the other party was enriched, (2) at that party's expense, and (3) that it is against equity and good conscience to permit the other party to retain what is sought to be recovered (Columbia Mem. Hosp. v Hinds, 38 N.Y.3d 253, 266 [2022]). A three-year statute of limitations governs causes of action alleging unjust enrichment when the plaintiff is seeking monetary relief (Siegler v Lippe, 189 A.D.3d 903, 903 [2d Dept 2020]). Thus, this claim is also barred by the statute of limitations.
The trespass cause of action must also be dismissed. The statute of limitations applicable to this case is three years, per CPLR 214 (4), and it began to run from the date that the telephone pole was installed. Plaintiffs' argument that the "continuing wrong" doctrine applies is inapposite. Here, the defendant did not do anything that can be construed to be a "continuing" tort resulting in successive causes of action. To prevail on a claim for trespass, a plaintiff must establish the "intentional entry onto the property of another without justification or permission" (Schwartz v Hotel Carlyle Owners Corp., ...
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