Cisco v. Verizon N.Y., Inc.

Summary

The Appellate Division, Second Department, affirmed an order granting Verizon and Verizon Communications summary judgment dismissing an action involving inverse condemnation, trespass, unjust enrichment, fraud, and General Business Law § 349 claims. The court held that Verizon Communications was not a proper party, the General Business Law § 349 claims were time-barred, and the plaintiffs consented to Verizon’s entry and installation of fiber-optic facilities. The court also upheld denial of leave to amend because the proposed amendments would not cure the defects in the complaint.

Holdings

1. An unpleaded affirmative defense may support summary judgment when the opposing party suffers no surprise or prejudice. Because plaintiffs were apprised of the defense in defendants' motion papers and had an opportunity to respond, defendants were not precluded from relying on it.
2. The General Business Law § 349 claims were barred by the applicable three-year statute of limitations because they accrued no later than April 6, 2015, and the action was commenced beyond three years thereafter.
3. Summary judgment dismissing the complaint was proper because Verizon demonstrated that plaintiffs consented to its entry, replacement of the pole, and placement of fiber-optic facilities; plaintiffs failed to raise a triable issue of fact. The fraud claim was also insufficiently particular, and the unjust-enrichment claim was duplicative of the inverse-condemnation and trespass claims.
4. The denial of leave to amend was proper because the proposed amendments would not cure the defects in the complaint that resulted in dismissal.

Questions Presented

1. Whether defendants could obtain summary judgment on the ground that Verizon Communications, Inc. was not a proper party despite failing to plead that affirmative defense.
2. Whether plaintiffs' General Business Law § 349 claims were barred by the applicable statute of limitations.
3. Whether plaintiffs raised a triable issue of fact on their inverse-condemnation, trespass, fraud, and unjust-enrichment claims against Verizon New York, Inc.
4. Whether the Supreme Court properly denied leave to amend the complaint because the proposed amendments would not cure the defects requiring dismissal.

Disposition

affirmed