Cisco v. Verizon New York, Inc.: Consent-Based Utility Rights-of-Way as a Bar to Inverse Condemnation, Trespass, and Related Claims

I. Introduction

In Cisco v. Verizon New York, Inc., 2025 NY Slip Op 06843 (2d Dept Dec. 10, 2025), the Appellate Division, Second Department, affirmed summary judgment dismissing a homeowner’s challenge to a telecommunications utility pole and fiber-optic facilities installed in her backyard. The decision clarifies:

How written consent and rights-of-way granted to a telecommunications carrier defeat claims of inverse condemnation and trespass;
That unjust enrichment cannot be used as a fallback where inverse condemnation and trespass are available and based on the same facts, following Corsello v Verizon N.Y., Inc., 18 NY3d 777;
That General Business Law § 349 deceptive practices claims against such utilities are subject to a three-year statute of limitations accruing no later than the date of the allegedly deceptive transaction;
That an unpleaded affirmative defense (here, “improper party”) may still support summary judgment where the plaintiff is not prejudiced or surprised by its late assertion.

The case arises from a long-standing utility pole located on private residential property in Brooklyn, originally installed in 1936 by a predecessor of Verizon New York, Inc. After Hurricane Sandy damaged the pole in 2012, Verizon replaced it in 2015 and installed fiber-optic (FiOS) facilities. The property owners, Melissa G. Cisco and Shannon Cisco‑Midgette (collectively, the plaintiffs), later sued Verizon New York, Inc. and its holding company, Verizon Communications, Inc. (VCI), alleging inverse condemnation, continuing trespass, unjust enrichment, deception under General Business Law (GBL) § 349, and fraud.

The Supreme Court, Kings County (Silber, J.), granted summary judgment for the defendants and denied the plaintiffs’ cross-motion for leave to amend. The Second Department affirmed in all respects, establishing a clear, document-centered approach to consent in the context of telecommunications infrastructure on private property.

II. Summary of the Opinion

The Appellate Division held:

Improper Party Defense and Verizon Communications, Inc. (VCI): Although “improper party” is an affirmative defense that should be pleaded under CPLR 3018(b), the defendants were permitted to raise it for the first time on summary judgment because the plaintiffs had notice of it from the motion papers and were not prejudiced. The court affirmed dismissal of all claims against VCI as an improper party.
GBL § 349 Claims – Statute of Limitations: The GBL § 349 deceptive practices claims were barred by the three-year statute of limitations under CPLR 214(2). The latest accrual date was April 6, 2015 (when Cisco signed the “Certificate of Acceptance of Proposed Work”), but the action was not commenced until May 2019. The plaintiffs did not establish any exception, tolling, or alternative accrual date.
Inverse Condemnation and Trespass: Inverse condemnation (de facto taking) and trespass claims failed because the plaintiffs consented to Verizon’s presence and activities on the property. Cisco signed:
- a March 7, 2015 “right of way” document granting Verizon the permanent right to “construct, reconstruct, relocate, replace, operate, repair, maintain and at its pleasure remove” the utility pole and its facilities; and
- an April 6, 2015 “Certificate of Acceptance of Proposed Work” authorizing placement of FiOS fiber-optic facilities “to provide FiOS services to owner’s building and other buildings within the block.”
This consent barred both a de facto taking theory and trespass.
Fraud: The fraud claim against Verizon New York, Inc. was dismissed because the plaintiffs failed to plead fraud with the particularity required by CPLR 3016(b); the allegations did not specify the “who, what, when, where, and how” of the alleged misrepresentations.
Unjust Enrichment: The unjust enrichment claim was dismissed as duplicative of the inverse condemnation and trespass claims, in line with Corsello v Verizon N.Y., Inc., which holds that unjust enrichment is not available when traditional tort or contract remedies cover the same subject matter.
Leave to Amend: The plaintiffs’ cross-motion for leave to amend the complaint was properly denied because the proposed amendments did not cure the legal defects that warranted dismissal; amendment would have been futile.

In short, the Appellate Division confirmed that where homeowners sign a broad right-of-way and acceptance of work documents, they cannot later characterize the resulting installations as unauthorized takings, trespasses, or deceptive practices, absent timely and specifically pleaded fraud or other actionable misconduct.

III. Factual and Procedural Background

A. The Property and the Utility Pole

The plaintiffs own a residential property in Brooklyn (“the property”).
In 1936, a predecessor of Verizon New York, Inc. installed a utility pole in the property’s backyard (“the original pole”).
From at least 2004 through 2015, the pole carried copper-based telecommunications infrastructure—phone, internet, and cable—serving Verizon customers in the surrounding neighborhood.

B. Hurricane Sandy and Replacement of the Pole

In 2012, Hurricane Sandy damaged the original pole.
At the plaintiffs’ request, Verizon replaced the original pole in March 2015 with a new pole.

Crucially, Verizon obtained written documentation from Cisco just before and shortly after the work:

March 7, 2015 – “Right of Way” Document:
- Signed by Cisco one day before the pole replacement work.
- Granted to Verizon the permanent “right, privilege, and authority, to construct, reconstruct, relocate, replace, operate, repair, maintain and at its pleasure remove” the “cracked pole with cable and terminal thereon in rear yard.”
April 6, 2015 – “Certificate of Acceptance of Proposed Work”:
- Signed by Cisco about a month after the replacement.
- Described the work as “generally consist[ing] of placing FiOS fiber optic facilities on or about the property to provide FiOS services to owner’s building and other buildings within the block.”

These documents form the backbone of the Appellate Division’s consent analysis.

C. Commencement of the Action

In May 2019—more than four years after signing the documents—the plaintiffs sued Verizon New York, Inc. and its holding company, Verizon Communications, Inc. They alleged that:

They had consented only to “repair” the original pole, not its replacement or the installation of additional FiOS-related equipment;
Verizon’s actions constituted a de facto taking and inverse condemnation entitling them to “just compensation” under Transportation Corporations Law § 27;
Verizon’s ongoing use of the pole and equipment constituted continuing trespass;
Verizon was unjustly enriched by using their property to serve others without adequate compensation;
Verizon engaged in deceptive business practices and fraud, including under GBL § 349.

D. Motion Practice in the Supreme Court

In May 2023, the defendants:

Moved for summary judgment dismissing the complaint in its entirety, including on the grounds that:
- VCI was an improper party;
- The GBL § 349 claims were time-barred;
- Consent defeated inverse condemnation and trespass claims;
- Fraud was insufficiently particularized; and
- Unjust enrichment was duplicative.
The plaintiffs opposed and cross-moved, seeking, among other relief, leave to file an amended complaint.

On December 20, 2023, the Supreme Court (Silber, J.) granted the defendants’ motion for summary judgment and denied the plaintiffs’ cross-motion, finding that:

VCI was an improper party;
The GBL § 349 claims were time-barred;
The documentary evidence established plaintiffs’ consent and defeated inverse condemnation, trespass, and related theories;
The fraud and unjust enrichment claims were legally deficient; and
Any amendment would be futile.

The plaintiffs appealed; the Second Department affirmed.

IV. Precedents and Authorities Cited

A. Affirmative Defenses and Summary Judgment

CPLR 3018(b): Requires certain defenses, including “improper party,” to be pleaded affirmatively in a responsive pleading.
GMAC Mtge., LLC v Coombs, 191 AD3d 37: The court quotes it for the general rule that failure to plead an affirmative defense results in its waiver. This frames the starting point: ordinarily, a defendant who does not plead “improper party” cannot later rely on it.
Freed v Best, 175 AD3d 1496: Cited for the important qualification that an unpleaded affirmative defense may still be used as a basis for summary judgment where there is no prejudice or surprise to the opposing party. The Second Department relies on this principle to allow Verizon’s improper-party argument against VCI despite its omission from the answer.
Rosario v City of New York, 261 AD2d 380: Used to support the conclusion that a defendant is not barred from raising an unpleaded defense on summary judgment where the plaintiff has had a fair opportunity to contest it.
Mauro v City of New York, 204 AD3d 777: Cited to support dismissal of claims against VCI once the defendants showed prima facie that VCI was not the proper party and the plaintiffs failed to raise a triable issue.

B. Statute of Limitations and GBL § 349

CPLR 214(2): Provides a three-year limitations period for actions “to recover upon a liability, penalty or forfeiture created or imposed by statute,” which includes GBL § 349 claims.
Cammarato v 16 Admiral Perry Plaza, LLC, 216 AD3d 903, and Osborn v DeChiara, 165 AD3d 1270: Cited for the burden-shifting rule in statute of limitations defenses:
- The defendant must first show that the claim was brought after the limitations period expired;
- The burden then shifts to the plaintiff to show an exception, toll, or alternative accrual date that would make the claim timely.
Tantleff v Kestenbaum & Mark, 131 AD3d 955: Supports the same burden-shifting framework.
Corsello v Verizon N.Y., Inc., 18 NY3d 777, 789: The Court of Appeals case is cited here to confirm that GBL § 349 claims are governed by CPLR 214(2)’s three-year limitations period.
Bennett v State Farm Fire & Cas. Co., 161 AD3d 926: Provides additional support for the three-year period for GBL § 349 claims.

C. Inverse Condemnation, De Facto Takings, and Trespass

Corsello v Verizon N.Y., Inc., 18 NY3d 777, 785–786:
- Defines inverse condemnation as the vehicle by which a landowner obtains just compensation when the government or an entity with eminent domain power occupies private property without formally exercising condemnation.
- Explains that an “owner whose property has been taken de facto may sue the entity that took it to obtain just compensation.”
- Distinguishes a de facto taking (permanent) from trespass (which may be temporary).
Volunteer Fire Assn. of Tappan, Inc. v County of Rockland, 101 AD3d 853, 856:
- Emphasizes the distinction between trespass and de facto taking: trespass can be temporary; a de facto taking implies a permanent occupation or appropriation of property rights.
Julia Props., LLC v Levy, 137 AD3d 1224, 1225:
- Stands for the proposition that a trespass claim cannot be maintained where the defendant has an easement over the land.
Huang v Fort Greene Partnership Homes Condominium, 228 AD3d 912, 917, and Boring v Town of Babylon, 147 AD3d 892, 893:
- Establish that trespass cannot be maintained when the landowner has consented to the defendant’s entry or activities on the property.

D. Fraud Pleading and Unjust Enrichment

Rosenblum v Board of Educ. Great Neck Union Free Sch. Dist., 231 AD3d 881:
- Relied upon for the requirement that fraud must be pleaded with particularity under CPLR 3016(b)—including specific misrepresentations, dates, speakers, and reliance.
Corsello v Verizon N.Y., Inc., 18 NY3d at 790–791:
- Holds that unjust enrichment is not a “catchall” cause of action that can be pleaded instead of, or in addition to, available tort or contract causes of action covering the same subject matter.
- As applied here, because the plaintiffs asserted inverse condemnation and trespass based on the same facts, unjust enrichment was duplicative.

E. Improper Parties and Leave to Amend

Mauro v City of New York, 204 AD3d 777, 778:
- Supports dismissal of a defendant who demonstrates that it is not a proper party (e.g., lacks ownership, control, or responsibility for the alleged wrong).
Singh v T-Mobile, 232 AD3d 662, 667:
- Cited for the rule that leave to amend should be denied when the proposed amendment would not cure the defects in the original pleading and would thus be futile.

V. The Court’s Legal Reasoning

A. Unpleaded Affirmative Defense and the Dismissal of Verizon Communications, Inc.

The plaintiffs argued that the defendants were barred from seeking dismissal of claims against VCI as an “improper party” because that defense was not pleaded in their answer, as required by CPLR 3018(b). The court acknowledged the general rule, citing GMAC Mtge., LLC v Coombs, that failure to plead such a defense typically results in waiver.

However, relying on Freed v Best and Rosario v City of New York, the court applied the recognized exception: an unpleaded affirmative defense may form the basis for summary judgment so long as it does not cause surprise or prejudice to the opposing party. Here:

The defendants plainly raised the “improper party” argument in their summary judgment papers;
The plaintiffs were fully apprised of the argument and addressed it in their opposition papers;
There was no procedural ambush or deprivation of a fair opportunity to respond.

On the merits of that defense, the court found that the defendants demonstrated, prima facie, that VCI was not a proper party—i.e., there was no factual basis tying VCI (a holding company) to the alleged conduct on the property. Citing Mauro v City of New York, the court held that, once this showing was made and the plaintiffs failed to raise a triable issue of fact, summary judgment dismissing all claims against VCI was appropriate.

This reinforces that, even if improperly omitted from the answer, an “improper party” defense can still be raised via summary judgment when the plaintiff is not prejudiced and the record supports dismissal.

B. Statute of Limitations and the GBL § 349 Claims

The court next addressed the defendants’ statute of limitations defense to the GBL § 349 deceptive practices claims.

Under CPLR 214(2), actions to recover upon a liability “created or imposed by statute,” such as GBL § 349 claims, must be commenced within three years. Citing Corsello and Bennett, the court applied this three-year limit.

Relying on Cammarato, Osborn, and Tantleff, the court reiterated the burden-shifting framework:

The defendants must show, prima facie, that the action was commenced after the limitations period expired;
The burden then shifts to the plaintiffs to raise a triable issue that an exception, toll, or alternative accrual date applies.

Here, the court held that:

The limitations period for the § 349 claims began to run no later than April 6, 2015, when Cisco signed the “Certificate of Acceptance of Proposed Work.” At that point, any alleged deceptive conduct—e.g., misrepresentations about what Verizon would install and for what purpose—had already occurred and was known or knowable to the plaintiffs.
The action was not commenced until May 2019, more than four years later, beyond the three-year window.
The plaintiffs failed to show any toll, delayed discovery rule (which generally does not apply to § 349), or alternative accrual theory that would salvage timeliness.

Consequently, the GBL § 349 causes of action were properly dismissed as time-barred.

C. Inverse Condemnation, De Facto Taking, and Trespass

1. Inverse Condemnation: Framework from Corsello

Inverse condemnation is the landowner’s remedy where the government, or an entity acting with eminent domain authority, occupies or appropriates property without formally instituting condemnation proceedings. Drawing heavily on Corsello, the court reaffirmed:

Inverse condemnation allows recovery of “just compensation” for a de facto taking; and
A de facto taking is generally considered permanent, distinguishing it from temporary invasions that may sound in trespass.

The plaintiffs argued that Verizon’s installation and use of the new pole and FiOS facilities in their backyard, particularly to serve others beyond their property, amounted to a de facto taking that required just compensation under Transportation Corporations Law § 27.

2. Trespass: Easement and Consent Principles

Trespass requires an unauthorized entry or invasion of another’s property. However:

Julia Props., LLC v Levy holds that trespass cannot lie where the alleged trespasser has an easement; and
Huang and Boring hold that trespass is unavailable when the landowner consented to the entry or occupation.

Thus, if Verizon had a valid right-of-way (an easement-like consent) and express permission to install and operate its facilities, both inverse condemnation and trespass theories falter at the outset.

3. The Court’s Application: Consent as a Complete Defense

The court found that the documentary record conclusively established the plaintiffs’ consent:

The March 7, 2015 “Right of Way” Document:
- Granted Verizon a permanent right to:
  construct, reconstruct, relocate, replace, operate, repair, maintain and at its pleasure remove the following facilities: cracked pole with cable and terminal thereon in rear yard.
- By using broad verbs—construct, reconstruct, relocate, replace, operate, repair, maintain—and specifying the “cracked pole with cable and terminal thereon,” the instrument authorized Verizon not only to repair but to replace the pole and associated equipment.
The April 6, 2015 “Certificate of Acceptance of Proposed Work”:
- Described the work as:
  Generally consist[ing] of placing FiOS fiber optic facilities on or about the property to provide FiOS services to owner's building and other buildings within the block.
- This language expressly acknowledged that:
  - Fiber-optic (FiOS) facilities, not just copper lines, would be installed;
  - Those facilities would serve both the owners’ building and other buildings within the block.

The plaintiffs alleged that they had only agreed to “repair” the original pole and not to its full replacement or the installation of new FiOS facilities—particularly not equipment providing service to others. The court rejected this characterization, holding that the signed documents:

Established that Cisco consented to Verizon’s entry onto the property;
Authorized repair and replacement of the pole and associated communications facilities; and
Expressly allowed installation of FiOS infrastructure servicing not only the plaintiffs’ premises but also neighboring buildings.

Because an action for trespass “may not be maintained where the alleged trespasser has an easement over the land in question” or has the owner’s consent, and because a de facto taking (inverse condemnation) presupposes an unauthorized or uncompensated occupation, the court found that:

The plaintiffs’ consent barred any trespass claim; and
The same consent defeated any assertion that a de facto taking occurred.

Thus, the inverse condemnation and trespass causes of action could not stand as a matter of law.

D. Fraud: Insufficient Particularity

The court next addressed the fraud claim against Verizon New York, Inc.

Under CPLR 3016(b), fraud must be pleaded with particularity, meaning that the complaint should articulate specifics such as:

The precise misrepresentation(s) made;
Who made them;
When and where they were made;
How they were false or misleading; and
How the plaintiff reasonably relied on them to their detriment.

Citing Rosenblum, the court held that the plaintiffs failed to plead fraud with the necessary degree of detail. The opinion notes that the defendants demonstrated their entitlement to summary judgment as a matter of law on this claim, and the plaintiffs failed to raise any triable issue in response.

While the opinion does not reproduce the complaint’s fraud allegations, the ruling indicates that the plaintiffs did not go beyond general accusations of deception and failed to specify concrete misrepresentations distinct from the conduct underlying other causes of action.

E. Unjust Enrichment: Duplicative of Inverse Condemnation and Trespass

The unjust enrichment claim alleged that Verizon benefited by using plaintiffs’ property (the backyard pole and facilities) to serve others without adequately compensating the owners.

However, under Corsello, unjust enrichment is not available where:

Other traditional causes of action (such as trespass, inverse condemnation, breach of contract, etc.) cover the same alleged misconduct;
The unjust enrichment claim would merely duplicate those claims.

Here, the plaintiffs already asserted inverse condemnation and trespass based on precisely the same core allegation: Verizon’s installation and use of utility facilities on their property to serve nearby subscribers. The court, following Corsello, held that unjust enrichment was duplicative and could not serve as a separate, alternative route to relief.

Because the defendants made a prima facie showing that unjust enrichment was duplicative, and the plaintiffs failed to raise a triable issue to distinguish the unjust enrichment claim, summary judgment was appropriate.

F. Denial of Leave to Amend the Complaint

Finally, the plaintiffs sought leave to file an amended complaint. The Supreme Court denied that branch of their cross-motion, and the Second Department affirmed.

Under New York practice, leave to amend should be “freely given” in the absence of prejudice or surprise, but may be denied if the amendment is palpably insufficient or patently devoid of merit. In Singh v T-Mobile, the Second Department recognized that leave is appropriately denied where proposed amendments do not cure the legal defects that justified dismissal.

Here, the proposed amendments did not—and could not—overcome:

The untimeliness of the GBL § 349 claims;
The documentary evidence of consent defeating inverse condemnation and trespass;
The lack of particularity in the fraud allegations; and
The duplicative nature of unjust enrichment.

Accordingly, amendment would have been futile, and denial of leave was proper.

VI. Complex Legal Concepts Simplified

For clarity, the key legal terms in this opinion can be summarized as follows:

Inverse Condemnation / De Facto Taking:
- When the government (or an entity with eminent domain authority or similar statutory powers) effectively “takes” private property for public use without formal condemnation proceedings.
- The owner can sue for “just compensation” as if a formal eminent domain proceeding had occurred.
- A de facto taking is usually permanent, unlike a one-off or temporary trespass.
Trespass:
- Unauthorized physical intrusion or interference with another’s property.
- If the property owner consents or the intruder has a legal right (e.g., an easement), there is no trespass.
Easement / Right-of-Way:
- A legal right to use someone else’s land for a specific purpose (e.g., a utility line, driveway).
- In this case, the “right of way” document functions like an easement, granting Verizon permanent rights to install and maintain its facilities on the plaintiffs’ land.
General Business Law § 349:
- A New York statute that prohibits deceptive business practices directed at consumers.
- Requires (among other things) a materially misleading practice that causes consumer injury.
- Has a three-year statute of limitations under CPLR 214(2).
Statute of Limitations:
- A legal time limit by which a lawsuit must be filed.
- If the time limit expires before the action is commenced, the claim is usually barred, regardless of its underlying merits.
Affirmative Defense:
- A defense that does not simply negate an element of the plaintiff’s claim, but asserts another reason why the defendant is not liable (e.g., statute of limitations, improper party).
- Must generally be pleaded in the answer (CPLR 3018(b)), but may sometimes be raised later if there is no prejudice.
Prima Facie Showing (on Summary Judgment):
- The initial showing a moving party must make to be entitled to judgment as a matter of law, assuming the facts they present are uncontested.
- If made, the burden shifts to the non-moving party to show a “triable issue of fact.”
Triable Issue of Fact:
- A genuine factual dispute that requires a trial to resolve because reasonable fact-finders could reach different conclusions.
- If no triable issues exist, the court can decide the case on summary judgment.
Unjust Enrichment:
- A claim that the defendant has unfairly benefited at the plaintiff’s expense and should be required to make restitution, even absent a detailed contract.
- Not available as a substitute when other, more specific tort or contract causes of action cover the same ground (per Corsello).
Fraud (and Particularity Requirement):
- Involves intentional misrepresentation or concealment of material facts, with intent to induce reliance and resulting damages.
- Must be pleaded with particularity in New York (CPLR 3016(b)), meaning detailed, specific allegations rather than vague accusations.

VII. Impact and Implications

A. For Property Owners and Telecommunications Utilities

This decision has practical implications for both property owners and telecommunications carriers:

Importance of Written Consent:
- Homeowners sometimes regard utility permission forms as minor or routine, focusing on “repair” rather than more expansive language.
- Cisco confirms that broad rights-of-way and acceptance forms—especially those granting permanent rights to “construct, reconstruct, relocate, replace, operate, repair, [and] maintain” facilities and to serve “other buildings within the block”—will be enforced as written.
- Once such documents are signed, subsequent claims that the installations were unauthorized takings or trespasses will be difficult to sustain.
Consent to Serve Others:
- The “Certificate of Acceptance” explicitly acknowledged service to “other buildings within the block.”
- The court treated this as valid consent to multi-premises use of infrastructure on the plaintiffs’ land, undercutting theories that Verizon improperly commercialized the property solely for its own benefit.
Utility Drafting Practices:
- The opinion effectively validates the use of detailed right-of-way and acceptance-of-work forms by telecommunications carriers.
- Properly drafted documents that clearly describe the scope of the work, the permanence of the installation, and the multi-user nature of the service can provide strong defenses to later challenges.

B. For Inverse Condemnation and Trespass Doctrine

Cisco situates itself firmly within the line of cases rooted in Corsello:

It reaffirms that private entities like Verizon, acting under statutory authority to provide public or quasi-public services, can be subject to inverse condemnation claims if they occupy property without consent; but
Where written consent is clear and comprehensive, the occupation is not a de facto taking and cannot be re-characterized as such simply because the owner later regrets granting those rights.

The decision underscores the critical role of consent and easement-like instruments in defeating takings and trespass theories:

If consent exists, there is no “wrongful” occupation;
Inverse condemnation presupposes an unauthorized or uncompensated appropriation of property rights, not a consensual arrangement memorialized in writing.

C. For Consumer Protection and Statutes of Limitation

For GBL § 349 claims, the decision:

Confirms the three-year limitations period under CPLR 214(2);
Emphasizes that accrual occurs when the allegedly deceptive act occurs or, at latest, when it should be apparent from the transaction documents.

In contexts where consumers sign written acknowledgments of services or infrastructure (such as utility installations), Cisco indicates that:

The time to sue for deceptive practices begins when those documents are executed and the services or installations are performed;

D. For Litigation Strategy and Pleading

Litigators can draw several lessons:

Unpleaded Defenses:
- Defendants who inadvertently omit an affirmative defense (e.g., improper party, statute of limitations, release) may still be able to raise it at the summary judgment stage, provided:
  - The plaintiff is not prejudiced or surprised; and
  - The defense is squarely argued and supported in motion papers.
Document-Driven Summary Judgment:
- Right-of-way and acceptance forms can be dispositive on summary judgment, especially when they explicitly describe the scope and purpose of the work.
- Plaintiffs cannot avoid summary judgment by merely asserting subjective misunderstandings where clear written terms exist.
Avoiding Duplicative Claims and “Catchall” Unjust Enrichment:
- Following Corsello, courts scrutinize unjust enrichment claims that rest on the same facts as traditional tort or contract claims.
- Cisco continues this trend: unjust enrichment cannot survive as a fallback when inverse condemnation and trespass claims already cover the alleged wrong.
Fraud Pleading:
- Parties must carefully allege specific misrepresentations and reliance; general accusations of deceptive conduct, particularly when documents spell out the work, are likely to be dismissed.
Leave to Amend and Futility:
- Even pro se plaintiffs must show that amendments would cure legal, not just factual, defects.
- If the core problem is that the documentary evidence flatly contradicts the theory of the case, amendment will be futile and properly denied.

VIII. Conclusion

Cisco v. Verizon New York, Inc. offers a clear, document-focused reaffirmation of several important legal principles:

Consent and Rights-of-Way:
- A homeowner’s signed right-of-way and acceptance-of-work documents granting broad, permanent rights to construct, replace, and operate utility facilities—and acknowledging service to other buildings—are powerful evidence of consent.
- Such consent forecloses inverse condemnation and trespass claims premised on the notion that the installations were unauthorized takings or intrusions.
Unjust Enrichment’s Limited Role:
- Building on Corsello, the court confirms that unjust enrichment cannot be used as a “catchall” when specific tort or statutory causes of action (inverse condemnation, trespass, GBL § 349) address the same conduct.
Statute of Limitations Discipline:
- GBL § 349 claims must be brought within three years from the allegedly deceptive transaction; delayed dissatisfaction does not extend or restart the clock.
Procedural Flexibility for Unpleaded Defenses:
- Though affirmative defenses should be pleaded, courts will allow them to be raised on summary judgment if no prejudice arises, reinforcing a pragmatic approach to procedural defaults.

In the broader legal context, Cisco solidifies New York’s approach to disputes over telecommunications infrastructure on private property. It emphasizes that:

Courts will enforce plain language in rights-of-way and consent documents;
Property owners must carefully review what they sign, particularly when granting permanent rights to utilities;
Telecommunications providers can rely on well-drafted consents to defend against takings, trespass, and deceptive practices claims, so long as those consents accurately describe their planned activities.

The decision thus strengthens the legal framework around consent-based easements for utility and telecommunications infrastructure, providing clearer guidance for future litigants on both sides of the pole.