Crespo v T-Mobile USA, Inc.

[*1] Crespo v T-Mobile USA, Inc. 2010 NY Slip Op 50771(U) [27 Misc 3d 135(A)] Decided on April 30, 2010 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 30, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Schoenfeld, Hunter, JJ
.

Clotilde Crespo, Plaintiff-Respondent, 570005/10

against

T-Mobile USA, Inc., Defendant-Appellant, and Verizon Communications, Inc., Defendant. T-Mobile USA, Inc., Third-Party Plaintiff, L.S.L. Services, Inc. a/k/a LSL Services, Inc., and Verizon Communications, Inc., Third-Party Defendants.

Defendant T-Mobile, USA, Inc. appeals, as limited by its briefs, from that portion of an order of the Civil Court of the City of New York, New York County (Jeffrey K. Oing, J.), dated September 23, 2009, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Jeffrey K. Oing, J.), dated September 23, 2009, insofar as appealed from, reversed, with $10 costs, the motion for summary judgment of defendant T-Mobile, USA, Inc. ("T-Mobile") granted, and the complaint dismissed as against it. The Clerk is directed to enter judgment accordingly.

Defendant T-Mobile made a prima facie showing of entitlement to judgment as a matter of law dismissing plaintiff's cause of action for the intentional tort of conversion, the only cause of action remaining against T-Mobile. The evidence adduced in support of T-Mobile's motion [*2]demonstrated that it was neither a tenant of the building in which the alleged conversion of plaintiff's electrical service occurred, nor actively involved in any installation or maintenance work at the building. T-Mobile further demonstrated that it was not otherwise liable for any tortious conduct of its subsidiary (a nonparty), which was a tenant in the building.

In opposition, plaintiff failed to raise a triable issue regarding whether T-Mobile intentionally assumed or exercised control over plaintiff's electrical service (see Colavito v New York Organ Donor Network, Inc., 8 NY3d 43, 49-50 [2006]). Although plaintiff submitted some evidence suggesting a connection between T-Mobile and a cell phone tower on the roof of the building, plaintiff submitted no competent evidence demonstrating that T-Mobile intentionally assumed or exercised control over plaintiff's electrical service. Since no triable issue exists regarding the conversion cause of action, summary judgment should have been granted to T-Mobile dismissing the complaint. We note that plaintiff did not assert in its complaint a cause of action sounding in negligence or seek to hold T-Mobile liable for the actions of its subsidiary.

In light of our determination that T-Mobile was entitled to summary judgment dismissing the complaint, the parties' contentions regarding plaintiff's claim for punitive damages are academic.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: April 30, 2010