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Scott Mollen

Trespass—Utility Telephone Cables—Summary Judgment on Trespass Claim Denied—Issues of Fact As to Whether Utility Was a Licensee or Trespasser and if a Licensee, Whether Utility Removed its Cable Within a Reasonable Time—Claims for Lost Profits, Attorney Fees, Internal Staff Time Dismissed—Plaintiffs May Recover Right of Way Fee But Are Precluded From Introducing Documents at Trial as to Such Fee Since No Such Documents Were Produced During Discovery

This decision involved an action for trespass on a commercial property. The plaintiffs were the occupant and owner of a building located in Manhattan. They alleged that the defendant telecommunication utility 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 (cable).” The plaintiffs’ claimed that they had “first learned of defendant’s cable in August 2015 while inspecting the premises to plan a construction project to expand their building.” They asserted that the defendant’s failure to “remove the cable timely, until December 2015, delayed the project and caused them financial losses.” The defendant countered that the plaintiffs were responsible for the delay “by preventing defendant from removing the cable sooner.”

The plaintiffs sought summary judgment as to defendant’s liability for trespass. The defendant sought summary judgment dismissing certain categories of damages.

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