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VERIZON NEW YORK INC., plf-res, v. NEW YORK STATE ELECTRIC & GAS CORPORATION, def-ap

4346. VERIZON NEW YORK INC., plf-res, v. NEW YORK STATE ELECTRIC & GAS CORPORATION, def-ap — The Wolford Law Firm LLP, Rochester (Laura A. Myers of counsel), for ap — Pillinger Miller Tarallo, LLP, Elmsford (Patrice Pulvers Coleman of counsel), for res — Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered July 13, 2016, which denied defendant's motion for summary judgment dismissing the complaint, unanimously modified, on the law, to grant so much of the motion as sought dismissal of the second cause of action alleging trespass, and otherwise affirmed, without costs.

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4346. VERIZON NEW YORK INC., plf-res, v. NEW YORK STATE ELECTRIC & GAS CORPORATION, def-ap — The Wolford Law Firm LLP, Rochester (Laura A. Myers of counsel), for ap — Pillinger Miller Tarallo, LLP, Elmsford (Patrice Pulvers Coleman of counsel), for res — Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered July 13, 2016, which denied defendant’s motion for summary judgment dismissing the complaint, unanimously modified, on the law, to grant so much of the motion as sought dismissal of the second cause of action alleging trespass, and otherwise affirmed, without costs.

In this action alleging property damage due to defendant utility company’s alleged negligence and/or trespass upon plaintiff’s underground telecommunications cables during an excavation, defendant established its entitlement to judgment as a matter of law as to plaintiff’s trespass cause of action. In opposition, plaintiff failed to raise a triable issue as to whether the actions by defendant in proceeding with excavation, under the circumstances presented, rendered it a substantial certainty that the excavation would intrude upon plaintiff’s underground equipment (see Phillips v. Sun Oil Company, 307 NY 328 [1954]; cf. Buckeye Pipeline Co. v. Congel-Hazard, Inc., 41 AD2d 590 [4th Dept 1973]).

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