Tuesday, June 19, 2012

STANLEY v. AMALITHONE REALTY, INC.


STANLEY v. AMALITHONE REALTY, INC.

2012 NY Slip Op 01788

SUSAN SCOTT STANLEY, ET AL., Plaintiffs-Appellants,
v.
AMALITHONE REALTY, INC., ET AL., Defendants-Respondents.

6284.

Appellate Division of the Supreme Court of New York, First Department.

Decided March 13, 2012.

Whitney North Seymour, Jr., New York, and Gabriel North Seymour, New York, for appellants.
Brown Rudnick LLP, New York (Wayne F. Dennison and Katherine S. Bromberg of counsel), for respondents.
Before: Andrias, J.P., Saxe, Sweeny, Acosta, Manzanet-Daniels, JJ.
Opinion by ACOSTA, J.
Plaintiffs are apartment residents seeking, inter alia, the removal of a cell phone tower from a nearby rooftop based on allegations that the tower's radio frequency emissions present a danger to health and constitute a nuisance. Defendant Amalithone Realty, Inc. owns the building with the cell phone tower, 113-115 University Place, in Manhattan. Defendant Amalgamated Lithographers of America, Local One, occupies Amalithone's building, and is the building's alleged beneficial owner. AT & T, a nonparty, leases or licenses the rooftop space where the cell phone tower was constructed and is the owner of the tower. At issue in this appeal is whether an action against the continued maintenance and operation of the rooftop cell phone tower is preempted by federal standards permitting the subject radio frequency radiation (RFR). We hold that plaintiffs' claims are preempted by the Telecommunications Act of 1996 (TCA). We thus affirm the dismissal of the complaint.

Background

Plaintiffs and their minor son have resided in an apartment on East 12th Street in Manhattan since about April 2007. Shortly after occupying the apartment, plaintiffs allegedly began to experience ill health. An environmental consultant and an electrical engineer they hired allegedly found high levels of radio frequency radiation in their apartment. Believing that the cell phone tower on defendant's nearby building is responsible for their ill health, plaintiffs' counsel wrote on November 2, 2009 to Amalithone requesting removal of the cell phone tower and enclosing a list of recent foreign studies of the health effects of cell antennas. After Amalithone failed to respond to plaintiffs' letter, plaintiffs sent a follow up letter on December 2, 2009. On December 17, 2009, Michael Minieri, the building manager of 113-115 University Place, sent a fax to plaintiffs' counsel from the office of defendant Amalgamated Lithographers of America, Local One enclosing an AT & T safety compliance certification indicating that the cell tower met FCC RFR regulations on July 5, 2009.
On March 16, 2010, plaintiffs filed a complaint pleading numerous causes of action, including claims for nuisance, trespass and an unlawful taking. In their prayer for relief, plaintiffs seek: a permanent injunction requiring the removal of all cell transmission antennas; damages for personal and property injury; punitive damages; and a declaratory judgment that they were entitled not to be subjected to unreasonable levels of RFR in their home from wireless transmission antennas. Defendants moved to dismiss the complaint pursuant to CPLR 3211 on various grounds, including federal preemption and the failure to join an indispensable party. In opposition, plaintiffs argued that preemption does not apply because they are not seeking to "regulate" radio frequency emissions and defendants were the primary and necessary parties to the lawsuit.
The motion court dismissed the complaint, finding nonparty AT & T indispensable under CPLR 1001(b) because it would be prejudiced unless able to address the ultimate relief sought, namely, removal of its cell phone tower (31 Misc.3d 995 [2011]). The court also found that plaintiffs would have a meaningful forum in the event of dismissal; namely, a petition to the Federal Communications Commission (FCC) to deny AT & T's license renewal and seek review of the resulting decision in federal court (id.).
The motion court expressly declined to address the preemption issue in its opinion. We, however, find that issue dispositive and conclude that plaintiffs' claims are preempted by federal law. Accordingly, we affirm the dismissal of the complaint.

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