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Supreme Court, Appellate Division, First Department, New York.

Joseph CASSATA, et al., Plaintiffs-Appellants, v. NEW YORK NEW ENGLAND EXCHANGE, Defendant-Respondent.

Decided: May 21, 1998

Before ROSENBERGER, J.P., and ELLERIN, WALLACH, WILLIAMS and SAXE, JJ. Michael Drezin, for plaintiffs-appellants. Guy Miller Struve, for defendant-respondent.

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placement and maintenance of a telephone cable along a rear wall of the building, after plaintiffs had allegedly withdrawn a license for it that had been granted by a previous owner.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 phone cables, 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   This Court held that the licenses had been revoked by the conveyance of the premises by the licensor, and that New York Telephone Co. was therefore trespassing.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:

The plaintiff was not deprived of the possession or use of his building.   Manifestly it would be difficult to show the value of the part of the roof used by the defendant, because, with the exception of this particular use, there probably was no demand for the use of the roof to the extent that it was occupied and used by the defendant.   These facts, therefore, take the case out of the ordinary rule by which a recovery is limited to the value of the use and occupation to the owner or the damages to the freehold, because it does not appear that there were any damages, and places the case in the category with those where a trespasser is required to respond in damage for the value of the use to him.

(110 App.Div. at 247, 97 N.Y.S. 66, supra [citations omitted] ).  Bunke is still followed for this principle (see, Granchelli v. Johnson Building Co., 85 A.D.2d 891, 446 N.Y.S.2d 755), and it is controlling here.

Plaintiffs' attempt to circumvent Bunke by arguing that a different measure of damages applies because this is an action in ejectment brought under Section 601 of the Real Property Actions and Proceedings Law (“RPAPL”), while the Bunke case was an action in trespass, is unavailing.   Courts have repeatedly held that the measure of damages does not depend upon the form of action chosen by the plaintiffs (see, Matter of Rothko, 56 A.D.2d 499, 502, 392 N.Y.S.2d 870, affd. 43 N.Y.2d 305, 401 N.Y.S.2d 449, 372 N.E.2d 291).

Here, because plaintiffs have not been deprived of possession of the building or any rents and profits they would otherwise have earned, and New York Telephone collected no rents and profits from the rear wall space occupied by the cable, the appropriate measure of damages is that directed by the motion court.


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