Abraham v. Town of Huntington, the Town Bd. of the Town of Huntington, Frank P. Petrone Berland Cuthbertson LLC, 2:17-cv-03616 (ADS)(SIL)

CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
Writing for the CourtSPATT, District Judge
PartiesPETER ABRAHAM, JODI ABRAHAM, PERRY GIAMBRUNO, and JO-ANN GIAMBRUNO, Plaintiffs, v. THE TOWN OF HUNTINGTON, THE TOWN BOARD OF THE TOWN OF HUNTINGTON, FRANK P. PETRONE as Supervisor of the Town of Huntington, SUSAN A. BERLAND as Councilwoman of the Town of Huntington, EUGENE COOK as Councilman of the Town of Huntington, MARK A. CUTHBERTSON as Councilman of the Town of Huntington, and CROWN CASTLE NG EAST LLC, Defendants.
Decision Date21 May 2018
Docket Number2:17-cv-03616 (ADS)(SIL)

PETER ABRAHAM, JODI ABRAHAM, PERRY GIAMBRUNO, and JO-ANN GIAMBRUNO, Plaintiffs,
v.
THE TOWN OF HUNTINGTON, THE TOWN BOARD OF THE TOWN OF HUNTINGTON,
FRANK P. PETRONE as Supervisor of the Town of Huntington, SUSAN A. BERLAND
as Councilwoman of the Town of Huntington, EUGENE COOK as Councilman of the Town of Huntington,
MARK A. CUTHBERTSON as Councilman of the Town of Huntington,
and CROWN CASTLE NG EAST LLC, Defendants.

2:17-cv-03616 (ADS)(SIL)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

May 21, 2018


MEMORANDUM OF DECISION & ORDER

APPEARANCES:

Campanelli & Associates, P.C.
Counsel for the Plaintiffs
1757 Merrick Avenue, Suite 204
Merrick, NY 11566
By: Andrew J. Campanelli, Esq.,
Amanda R. Disken, Esq., Of Counsel

Buchman Ingersoll & Rooney, P.C.
Counsel for Defendants the Town of Huntington, The Town Board of the Town of Huntington, Frank P.
Petrone as Supervisor of the Town of Huntington, Susan A. Berland as Councilwoman of the Town of Huntington, Eugene Cook as Councilman of the Town of Huntington and Mark A. Cuthbertson as Councilman of the Town of Huntington
1290 Avenue of the Americas
New York, NY 10104
By: David J. Porter, Esq.,
Jacqueline M. Weyand, Esq., Of Counsel

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Snyder & Snyder, LLP
Counsel for Defendant Crown Castle NG East LLC
94 White Plains Road
Tarrytown, NY 10591
By: Robert D. Gaudioso, Esq., Of Counsel

SPATT, District Judge:

On June 15, 2017, Peter Abraham, Jodi Abraham (together, the "Abrahams"), Perry Giambruno, and Jo-Ann Giambruno (together, the "Giambrunos") (all together, the "Plaintiffs"), commenced this action in this Court against the Town of Huntington (the "Town"), the Town Board of the Town of Huntington (the "Board"), Frank P. Petrone as Supervisor of the Town of Huntington ("Petrone"), Susan A. Berland as Councilwoman of the Town of Huntington ("Berlannd"), Eugene Cook as Councilman of the Town of Huntington ("Cook"), Mark A. Cuthbertson as Councilman of the Town of Huntington ("Cuthbertson") (together, the "Town Defendants"), and Crown Castle NG East LLC ("Crown Castle") (all together, the "Defendants"). The Plaintiffs allege causes of action under 42 U.S.C. § 1983. They seek declaratory relief stating that (a) numerous constitutional rights of the Plaintiffs have been violated; (b) the Telecommunications Act of 1996 ("TCA") as applied by the Town is unconstitutional; and (c) the approvals and permits for Crown Castle's equipment at issue are null and void. In addition, the Plaintiffs seek to have the equipment at issue removed as well as nominal damages and attorneys fees.

Presently before the Court are a series of motions filed by the Town Defendants and Crown Castle. Both the Town Defendants and Crown Castle filed separate motions to dismiss, pursuant to Federal Rule of Civil Procedure ("FED. R. CIV. P." or "Rule") 12(b)(6), seeking to dismiss the complaint for failure to state a claim upon which relief may be granted. In addition, the Town

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Defendants moved to strike certain material submitted with the Plaintiffs' opposition brief, pursuant to FED. R. CIV. P. 12.

I. BACKGROUND

A. THE FACTUAL BACKGROUND

Unless otherwise noted, the following facts are drawn from the Plaintiffs' complaint, and for the purposes of the instant motions, they are construed in favor of the Plaintiffs.

At all times relevant to this case, the Abrahams lived at 44 Glenna Little Trail, Huntington, NY and the Giambrunos lived at 12 Cider Mill Lane, Huntington, NY. Compl. ¶¶ 5-6.

On August 16, 2016, the Board adopted Resolution No. 2016-399, which allowed Petrone, as Town Supervisor, to execute a license agreement with Crown Castle "for the proposed use and occupancy by Crown Castle of the public ways as is necessary for the installation and operation of its [Distributed Antenna System ("DAS")]." DAS is a "[s]ystem that uses passive (non-powered) or active (powered) networking equipment, such as antennas, fiber-optic, coaxial cable and other technologies to extend radio frequency ("RF") coverage (of any technology) inside a building." DAS (distributed antenna system), GARTNER, https://www.gartner.com/it-glossary/das-distributed-antenna-system (last visited May 16, 2018). The Plaintiffs contend that there was a "sham public hearing" held prior to August 16, 2016 during which no specific sites for DAS antennas were discussed. Compl. ¶ 54. On August 23, 2016, the Town executed a license agreement with Crown Castle that provided for the installation and approval of a DAS fiber-based telecommunications network within the public right-of-way.

The complaint contends that on October 19, 2016, Crown Castle filed applications with the Town to install DAS antennas on cellular poles on public rights-of-way near the Abrahams' property and the Giambrunos' property. Compl. ¶¶ 62, 69.

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On November 2, 2016, the Huntington Town Planning Board adopted a resolution approving a series of applications from Crown Castle to install several new DAS antennas along the public rights-of-way, including one adjacent to the Abrahams, pole N847, and another adjacent to the Giambrunos, pole 829. Compl. ¶ 58. No notice was purportedly provided to the Plaintiffs that such a resolution was being considered by the Huntington Town Planning Board. Compl. ¶ 59. As a condition of the resolution, Crown Castle was required to obtain all the necessary permits for the proposed DAS antennas. Compl. ¶ 60.

On November 7, 2016, the Town granted Crown Castle's building permits, which allowed for the installation of DAS antennas on existing poles on public rights-of-way near both the Abrahams' and Giambrunos' properties. Compl. ¶¶ 65, 72.

Crown Castle installed a DAS antenna adjacent to the Abrahams' property on December 4, 2016, and another one adjacent to the Giambrunos' property on December 9, 2016. The Plaintiffs allege that Crown Castle installed the DAS antennas on new public utility poles at the rights-of-way near the Abrahams' and Giambrunos' properties, rather than existing poles pursuant to the November 7, 2016 permits issued by the Town. Compl. ¶¶ 66-67.

According to the complaint, Crown Castle never obtained the requisite permits, and submitted materially false building permit applications as well as false affidavits in support in such applications. Compl. ¶¶ 61, 63-64, 70-71 Further, the Plaintiffs contend that the Town Defendants conspired with Crown Castle "to circumvent the Town's own zoning laws, avoid the public hearings which were required by such zoning laws, and of greatest import, to ensure that homeowners, such as the plaintiffs, would be deprived of any notice or opportunity to be heard at any time before the [DAS antennas] were built in extremely close proximity to their respective homes." Compl. ¶ 50.

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B. THE RELEVANT PROCEDURAL HISTORY

On June 15, 2017, the Plaintiffs filed the above-mentioned complaint in this Court.

On September 15, 2017, the Town Defendants moved under Rule 12(b)(6) to dismiss the complaint, contending that the Plaintiffs' allegations, even if taken as true, fail to plausibly state claims upon which relief can be granted. That same day, Crown Castle filed a separate motion under Rule 12(b)(6) also seeking to dismiss the complaint. In response to the documents filed in support of the Plaintiffs' memorandum of law in opposition of the Defendants' motions to dismiss, Huntington filed a motion to strike, pursuant to Rule 12, seeking to strike certain documents submitted by the Plaintiffs. All of the above-mentioned motions are fully briefed.

II. MOTION TO STRIKE

The Defendants seek to have the following materials, which were submitted in support of the Plaintiffs' memorandum in opposition, stricken from consideration regarding the instant motions to dismiss: (1) Exhibits E through I of the Declaration of Andrew J. Campanelli, Docket Entry ("DE") 29 ("Campanelli Decl."); (2) the Affidavit of Peter Abraham, DE 28 ("Abraham Affidavit"); and (3) certain allegedly unsupported factual assertions in the Plaintiffs' memorandum in opposition. As a preliminary matter, the Court must first address whether these materials may be properly considered by the Court for the purposes of adjudicating the instant motions to dismiss.

"[F]ederal courts have complete discretion to determine whether or not to accept the submission of any material beyond the pleadings offered in conjunction with a Rule 12(b)(6) motion." Giugliano v. F32 Capital Partners, LLC, No. 14-cv-7240, 2015 WL 5124796 (E.D.N.Y. Sept. 1, 2015) (Spatt, J.) (internal citations and quotation marks omitted); accord Halebian v. Berv, 644 F.3d 122, 131 n.7 (2d Cir. 2011) (noting the Second Circuit has recognized "exceptions to

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Rule 12(b)(6)'s general prohibition against considering materials outside the four corners of the complaint"). In adjudicating this motion, the Court is permitted to consider:

(1) facts alleged in the complaint and documents attached to it or incorporated in it by reference, (2) documents "integral" to the complaint and relied upon in it, even if not attached or incorporated by reference, (3) documents or information contained in [the] defendant's motion papers if plaintiff has knowledge or possession of the material and relied on it in framing the complaint, (4) public disclosure documents required by law to be, and that have been, filed with the Securities and Exchange Commission, and (5) facts of which judicial notice may properly be taken under Rule 201 of the Federal Rules of Evidence.

Envtl. Servs. v. Recycle Green Servs., 7 F. Supp. 3d 260, 270 (E.D.N.Y. 2014) (Spatt, J.) (quoting In re Merrill Lynch & Co., 273 F. Supp. 2d 351, 356-57 (S.D.N.Y. 2003), aff'd in part and vacated in part on other grounds sub nom. Dabit v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 395 F.3d 25 (2d Cir. 2005), vacated on other grounds, 547 U.S. 71, 126 S. Ct. 1503, 164 L. Ed. 2d 179 (2006)); accord Healthnow New York, Inc. v. Catholic Health Sys., Inc., No. 14-cv-986S, 2015 WL 5673123 (W.D.N.Y. Sept. 25, 2015); Oberstein v....

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