Stanley v. Amalithone Realty Inc.

• Decision Date: 17 March 2011
• Citation: 2011 N.Y. Slip Op. 21120,31 Misc.3d 995,921 N.Y.S.2d 491
• Parties: Susan Scott STANLEY and Michael C. Stanley, individually and as Guardians for a minor son, Plaintiffs,v.AMALITHONE REALTY, INC. and Amalgamated Lithographers of America, Local One, Defendants.
• Court: New York Supreme Court

31 Misc.3d 995

921 N.Y.S.2d 491

2011 N.Y. Slip Op. 21120

Susan Scott STANLEY and Michael C. Stanley, individually and as Guardians for a minor son, Plaintiffs,

v.AMALITHONE REALTY, INC. and Amalgamated Lithographers of America, Local One, Defendants.

Supreme Court, New York County, New York.

March 17, 2011.

Whitney North Seymour Jr., New York, attorney for plaintiffs.Tanya D. Bosi and Wayne F. Dennison, of Brown Rudnick LLP, of New York, attorneys for defendants.O. PETER SHERWOOD, J.

This is an action brought to have a cell phone tower adjudged a common-law nuisance and removed from the rooftop of a building owned by defendant Amalithone Realty Inc. The building is located near the residential property where plaintiffs reside. Defendant Amalgamated Lithographers of America, Local One, a union, leases the building in question as its headquarters. The action sounds in nuisance, trespass, and related torts for alleged injuries to plaintiffs' person and plaintiffs' right to enjoy their home.

Before the court is defendants' motion to dismiss the complaint, pursuant to CPLR 3211(a)(2), (7) and (10), arguing that: (1) plaintiffs' claims are preempted by federal law; (2) plaintiffs have failed to join a necessary and indispensable party to this action under CPLR 1003; and (3) the complaint fails to state any cause of action upon which relief can be granted.

For the reasons that follow, defendants' motion to dismiss the complaint is granted in its entirety.

BACKGROUND

On this motion to dismiss the facts alleged are taken from the Complaint and are assumed to be true. Defendant Amalithone Realty, Inc. (Amalithone) is the record owner of the commercial property, and the building situated thereon that is located at 113–115 University Place, New York, New York. The building's rooftop was leased to AT & T Wireless Services Inc. (AT & T), a wireless carrier, for the installation of a cell phone tower, consisting of wireless communication antennas and a cabinet to house other electronic equipment. It is unclear from the pleadings when the rooftop was leased or licensed, and which of the two defendants actually signed the lease or license with AT & T.

Plaintiffs Susan Scott Stanley, Michael C. Stanley and their minor son reside at a condominium apartment, located at 35 East 12th Street, New York, New York. The apartment building is in close proximity to the building where the cell phone tower and wireless transmission antennas are located. Plaintiffs began occupying their apartment in or about April 2007. Shortly after moving into the apartment, members of the Stanley family began to experience headaches, nose-bleeds, fatigue, disturbed sleep, anxiety and other physical and mental ailments.

In 2008, the Stanley family hired a consultant who specializes in environmental assessments to investigate the cause of their health problems. A year later, in 2009, the family hired an electrical engineer to measure the radio frequency radiation inside the apartment. Both consultants found high levels of radio frequency (RF) radiation inside plaintiffs' apartment. Plaintiffs ascribe the emissions to defendants based on the fact that the nearest cell transmission antennas to their apartment are located on the roof of the building owned by Amalithone.

RF emissions are a form of electromagnetic radiation that have separate electric and magnetic components which are linked together, and travel as a wave at a frequency which is expressed in Hertz (Hz). Higher frequencies are described in terms of kilohertz (KHz or 1000 Hz), megahertz (MHZ or 1 million Hz) or gigahertz (Ghz or 1 billion Hz) ( see J.H. Snider, Citizen's Guide to the Airwaves, at 8, available at www. newamerica. net/ files/ airwaves. pdf [accessed March 2, 2011] ). Most wireless technology operate at the 800 to 900 MHZ or 1850 to 1990 MHZ frequencies. These frequencies are in the microwave spectrum or radio-frequency range ( id.).

Before commencing this litigation, on or about November 2 and December 2, 2009, plaintiffs' counsel, via letter, requested removal of the roof top cell tower. In response, Michael Minieri, the property building manager, delivered to plaintiffs' counsel a copy of an AT & T Mobility RF Safety Compliance Certification (the Compliance Certification), dated June 5, 2009, to establish that the wireless transmission antennas meet FCC guidelines for RF transmissions.

In their Verified Complaint, filed on March 16, 2010, plaintiffs alleged fourteen causes of action, including intentional private and negligent private nuisance, trespass, unlawful taking, misrepresentation and deceit, prima facie tort, strict liability, assault and battery, vicarious liability, and punitive damages. Plaintiffs contend that they are not seeking to have the court regulate RF emissions. Instead, plaintiffs seek an injunction removing the antennas and money damages for injuries resulting from defendants' decision to lease its rooftop for transmitter use. Plaintiffs also seek a declaratory judgment, pursuant to CPLR 3001, that the hazardous and unsafe operation of the cell antennas, licensed by the Federal Communications Commission (FCC), a federal agency, deprives them of substantive due process and their federal and state constitutional rights.

Defendants seek dismissal of the entire complaint.

DISCUSSION

Rather than addressing those portions of defendants' motion to dismiss based on federal preemption grounds, the court will focus on: (1) whether all necessary and indispensable parties to this action are joined; and (2) whether plaintiffs have failed to state a cause of action. For even if a viable claims otherwise exists, it is clear that plaintiffs' claims are barred on these grounds.

A. Procedural Considerations: Necessary and Proper Parties

Non-joinder of a party who should be joined under CPLR 1001 is a ground for dismissal of an action without prejudice ( see CPLR 1003). Under CPLR 1001(a), a necessary party is one whose non-joinder will jeopardize the outcome of the action in either of two ways: (1) “complete relief” cannot be accorded the existing parties to the action; or (2) the absentee might be “inequitably affected” by the judgment. If a person's absence would lead to either result, the statute declares the person to be a “party who should be joined.”

Typically, those owning or holding interests in real property are necessary parties to a nuisance action affecting the property or to a proceeding to restrict its use ( see Java Lake Colony v. Institute of Sisters of St. Joseph of Diocese of Buffalo, 262 A.D. 808, 28 N.Y.S.2d 33 [4th Dept. 1941]. In Incorporated Village of Atlantic Beach v. Pebble Cove Homeowners Assn., 139 A.D.2d 627, 527 N.Y.S.2d 429 [2d Dept. 1988] ), a village brought an action against a homeowners' association to enjoin an alleged nuisance, namely, drainage of water on village streets emanating from the heating and air-conditioning systems used in a condominium development. The Appellate Division, Second Department, ruled that the owners of the individual units in the development were necessary parties in light of the relief sought by the village, which was an injunction preventing the unit owners from using their individually controlled heating and air-conditioning systems ( see also New York City Audubon Society, Inc. v. New York State Dept. of Environmental Conservation, 262 A.D.2d 324, 691 N.Y.S.2d 562 [2d Dept. 1999] [holding that an entity to which a tidal wetlands permit was issued was a necessary party to a proceeding seeking the revocation of that permit] ). In contrast, persons who are unable to claim legitimately any interest in real estate which is the subject of litigation are not necessary parties ( see e.g. Brothers v. Wall, 84 A.D.2d 923, 447 N.Y.S.2d 64 [4th Dept. 1981] ).

Issues involving necessary parties often arise in cases concerning property ownership, contract rights and government regulatory matters ( see City of New York v. Long Island Airports Limousine Service Corp., 48 N.Y.2d 469, 423 N.Y.S.2d 651, 399 N.E.2d 538 [1979] [holding that action by city to enjoin operation of omnibus route had to be dismissed for failure to join the Commissioner of Transportation]; Llana v. Town of Pittstown, 245 A.D.2d 968, 667 N.Y.S.2d 112 [3d Dept. 1997] [holding that property owners who had received subdivision approval under a town subdivision law were necessary parties to a proceeding challenging that law]; Baker v. Town of Roxbury, 220 A.D.2d 961, 632 N.Y.S.2d 854 [3d Dept. 1995] [holding that the owner of a parcel of land, who received a town permit to use it as a junkyard, was a necessary party to a proceeding to annul a negative declaration issued under the state Environmental Conservation Law and to set aside issuance of the permit] ).

In the present case, plaintiffs did not join AT & T, the wireless carrier, as a party to this action. AT & T as the omitted party would be inequitably affected by a judgment in this action and therefore it is a necessary party ( see In re 27th Street Block Association v. Dormitory Authority of the State of New York, 302 A.D.2d 155, 752 N.Y.S.2d 277 [1st Dept. 2002] ). A determination that the wireless carrier is a necessary party does not necessarily mandate dismissal. Rather, the court must consider whether the action can proceed without that party. A party who must be joined lest the action be dismissed is termed an “indispensable party.”

There are two principal reasons for requiring dismissal of the complaint owing to the absence of an indispensable party. First, mandatory joinder prevents multiple and inconsistent judgments relating to the same controversy. Second, joinder protects the absent party who would be “embarrassed by judgments purporting to bind their rights or interests where they had no opportunity to be heard” ( Saratoga County Chamber of Commerce, Inc. v. Pataki, 100 N.Y.2d 801, 820, 766 N.Y.S.2d 654, 798 N.E.2d 1047 [2003], quoting First Natl. Bank v....