New Cingular Wireless PCS, LLC v. The Incorporated Village of Muttontown

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

--------------------------------X

NEW CINGULAR WIRELESS PCS, LLC

d/b/a AT&T Mobility,

MEMORANDUM & ORDER

Plaintiff, 22-CV-5524 (JS)(LGD)

-against-

THE INCORPORATED VILLAGE OF

FILED

MUTTONTOWN; THE INCORPORATED

CLERK

VILLAGE OF MUTTONTOWN BOARD OF

TRUSTEES; THE PLANNING BOARD OF 5:03 pm, Sep 23, 2024

THE INCORPORATED VILLAGE OF

U.S. DISTRICT COURT

MUTTONTOWN, THE SITE AND

EASTERN DISTRICT OF NEW YORK

ARCHITECTURAL REVIEW BOARD OF THE

LONG ISLAND OFFICE

INCORPORATED VILLAGE OF

MUTTONTOWN, and THE ZONING BOARD

OF APPEALS OF THE INCORPORATED

VILLAGE OF MUTTONTOWN,

Defendants.

--------------------------------X

APPEARANCES

For Plaintiff: Andrew B. Joseph, Esq.

Kenneth J. Wilbur, Esq.

Vijayasri Aryama, Esq.

Faegre Drinker Biddle & Reath LLP

600 Campus Drive

Florham Park, New Jersey 07932

For Defendants The Keith M. Corbett, Esq.

Incorporated Village of Stephanie T. Barry, Esq.

Muttontown, The Harris Beach PLLC

Incorporated Village of 100 Wall Street, 23rd Floor

Muttontown Board of New York, New York 10005

Trustees, The Planning

Board of the Incorporated

Village of Muttontown,

and The Site and

Architectural Review

Board of the Incorporated

Village of Muttontown:

For Defendant The Zoning Andrew J. Campanelli

Board of Appeals of the Campanelli & Associates, P.C.

Incorporated Village of 1757 Merrick Avenue, Suite 204

Muttontown: Merrick, New York 11566

Keith M. Corbett, Esq.

Stephanie T. Barry, Esq.

Harris Beach PLLC

(See above for address)

SEYBERT, District Judge:

Plaintiff New Cingular Wireless PCS, LLC (hereafter,

“Plaintiff”), brings this action against Defendants The

Incorporated Village of Muttontown (hereafter, the “Village”), the

Incorporated Village of Muttontown Board of Trustees (hereafter,

the “Board of Trustees”), the Planning Board of the Incorporated

Village of Muttontown, (hereafter, the “Planning Board”), the Site

and Architectural Review Board of the Incorporated Village of

Muttontown (hereafter, the “SARB”), and the Zoning Board of Appeals

of the Incorporated Village of Muttontown (hereafter, the “Zoning

Board”) (collectively, “Defendants”) seeking redress following the

denial of its application to construct a monopole in the village

of Muttontown which would have addressed a gap in wireless network

services (hereafter, the “Application”). (See Compl., ECF No. 1.)

---

On March 9, 2023, Defendants filed a Motion to Dismiss

all claims against Defendants pursuant to Federal Rules of Civil

Procedure (hereafter, “Rule(s)”) 12(b)(1), for lack of subject

matter jurisdiction, and 12(b)(6), for failure to state a claim

upon which relief may be granted (hereafter, “Dismissal Motion”).

(Defs’ Support Memo, ECF No. 48-5, at 10.) On December 18, 2023,

Magistrate Judge Lee G. Dunst (hereafter, “Judge Dunst”) issued a

Report and Recommendation (hereafter “Report” or “R&R”)

recommending the Court grant Defendants’ Dismissal Motion and

dismiss the federal claims and the N.Y. C.P.L.R. Article 78 claim

against all Defendants without prejudice. (R&R, ECF No. 54, at

23.) Judge Dunst further recommended the Court decline to exercise

supplemental jurisdiction over the remaining state claims and

dismiss those claims without prejudice. (Id.) For the following

reasons, Plaintiff’s objections are OVERRULED, the R&R is ADOPTED

in its entirety, and Defendants’ Dismissal Motion is GRANTED

insofar as it seeks dismissal of Plaintiff’s claims without

prejudice.

BACKGROUND

The Court presumes the parties’ familiarity with,

adopts, and incorporates herein, the factual and procedural

background as set forth in the R&R.1 (See R&R at 2-13.) See

generally Sali v. Zwanger & Pesiri Radiology Grp., LLP,

No. 19-CV-0275, 2022 WL 819178, at *1 (E.D.N.Y. Mar. 18, 2022)

(where no party challenges magistrate judge’s recitation of

1 The Court further adopts defined terms as referenced in the R&R.

(See, e.g., R&R at 9-10 (referring Plaintiff’s claims as the “Shot

Clock Claim”, the “Prohibition Claim” and the “Substantial

Evidence Claim”, respectively).)

factual and procedural backgrounds of the case, upon clear error

review, adopting and incorporating same into court’s order).2

I. Judge Dunst’s R&R

In his December 18, 2023 Report, Judge Dunst recommended

the Court dismiss with prejudice “all claims as to the Village,

the Board of Trustees, the Planning Board, and the SARB.” (R&R at

2.) “Additionally, as to the Zoning Board, [Judge Dunst]

recommend[ed] . . . all claims under the [Telecommunications Act

(hereafter, the “TCA”)] and N.Y. C.P.L.R Article 78 be dismissed

without prejudice, and that the Court decline to exercise

supplemental jurisdiction over all remaining state claims.” (R&R

at 2.)

A. Recommendation to Dismiss Claims Against the Village,

the Board of Trustees, the Planning Board, and SARB

Judge Dunst recommended dismissal of the Shot Clock

Claims (Count I) made against the Village, the Board of Trustees,

the Planning Board, and the SARB (hereafter, the “Non-Zoning Board

Defendants”), concluding the claims were not ripe because “once

the Zoning Board denied [Plaintiff’s] variance Application, the[]

[other] Defendants were divested of their authority to act and

could not overrule the Zoning Board’s decision.” (R&R at 11-14.)

2 The Court notes Plaintiff’s objection to certain factual

conclusions made in the Report’s analysis, as opposed to the

Report’s factual background. (See Objs., ECF No. 56, at 17.) Such

objections are addressed, to the extent necessary, herein.

The R&R similarly recommended dismissal of Plaintiff’s Prohibition

and Substantial Evidence Claims (Counts II and III, respectively)

against the Non-Zoning Board Defendants because, once the Zoning

Board voted to deny Plaintiff’s Application, the Non-Zoning Board

Defendants had “no authority to contravene” such ruling, and

therefore there is “no recourse any of these entities could provide

to Plaintiff” with respect to these claims and “there is no

controversy between the parties on these counts.” (Id. at 14-15.)

B. Recommendation to Dismiss Claims Against the Zoning

Board

Judge Dunst also recommended dismissing Plaintiff’s Shot

Clock, Prohibition, Substantial Evidence, and State Law Claims

(Count IV) against the Zoning Board. (Id. at 2.) First, he

reasoned the Shot Clock Claim against the Zoning Board should be

dismissed because the parties agreed: (1) the Shot Clock expired

on August 18, 2022; and (2) the Zoning Board denied Plaintiff’s

Application at a hearing on July 21, 2022, and issued a written

decision to the same effect on August 17, 2022. (Id. at 17.)

Relying upon Supreme Court law, Judge Dunst concluded Plaintiff

made “no factual allegations that the written decision was distinct

and not contemporaneous with the [Application] denial at the July

21, 2022 hearing” and, accordingly, recommended dismissal of the

Shot Clock Claim pursuant to Federal Rule of Civil Procedure

(hereafter, “Rule”) 12(b)(6). Second, Judge Dunst recommended

dismissal of Plaintiff’s Prohibition Claim against the Zoning

Board pursuant to Rule 12(b)(6) because there were “no factual

allegations . . . that the Proposed Facility was the least

intrusive means of closing the service gap” and the Complaint

provided “only one cursory allegation” on this point. (Id. at

18-19.) Third, Judge Dunst recommended dismissal of the

Substantial Evidence Claim pursuant to Rule 12(b)(6) because there

were “several instances [in the record] where Plaintiff seems to

admit it did not provide evidence of considered alternatives to

the [proposed construction]” and because the “cursory legal

conclusion” that there were no feasible alternative means to remedy

the service gap is insufficient to meet the applicable pleading

standard. (Id. at 20-21.) Finally, in light of the recommended

dismissal of all federal claims, Judge Dunst recommended the Court

decline to exercise supplemental jurisdiction over the remaining

State Law Claims. (Id. at 22.)

II. Plaintiff’s Objections to the R&R

Plaintiff asserts four primary objections to Judge

Dunst’s Report. (Objs., ECF No. 56.) First, Plaintiff argues

Judge Dunst impermissibly dismissed its Prohibition Claim against

the Zoning Board because, inter alia, Plaintiff sufficiently

alleged that “the Proposed Facility was the least intrusive means

of closing the service gap.” (Id. at 13 (quoting R&R at 19).)

Plaintiff argues it did so by: (1) asserting in detail the

alternative means of addressing the coverage gap, and ruling out

such alternative means; (2) alleging there are no existing

structures that could host a facility that would remedy the service

gap; (3) concluding the proposed construction site was a “priority

location” under the Village Code; and lastly, (4) alleging the

Application hearing record was devoid of evidence of alternative,

less intrusive locations for construction aside from the Proposed

Facility. (Id. at 13-14.) According to Plaintiff, these

allegations, which must be accepted as true on a motion to dismiss,

are sufficient to sustain a claim for prohibition.

As its second objection, Plaintiff argues its

Substantial Evidence Claim was improperly dismissed because:

(1) the R&R failed to consider the entire record; (2) the R&R

ignored “Rule 12(b)(6)’s mandate to draw all reasonable inferences

in non-movant’s favor” by concluding (a) Plaintiff admitted it did

not consider less intrusive alternatives to the proposed monopole

construction despite allegations in the Complaint that Plaintiff

did consider such alternatives and determined they were not viable;

and (b) Plaintiff did not consider alternate sites for its proposed

monopole despite the Complaint’s allegation that “there is no

evidence that multiple site scenarios, in the aggregate, would be

available, viable, less intrusive, or feasible”. (Id. at 17-22.)

For its third objection, Plaintiff contends the R&R

erroneously dismissed its Shot Clock Claims against the Non-Zoning

Board Defendants based upon: (1) Defendants’ purportedly

suspicious conduct in relation to Plaintiff’s Application as

outlined in the Complaint; (2) its position that the Zoning Board’s

denial of its Application does not absolve the other Defendants of

their obligation to comply with the shot clock; and (3) allegations

in the Complaint that Plaintiff’s Application required approval

from the Non-Zoning Board Defendants. (Id. at 23-25.) Moreover,

Plaintiff asserts its Shot Clock Claim against the Zoning Board

should survive because: (4) the Zoning Board voted to deny the

Application on July 21, 2022 but did not provide written notice of

denial until August 17, 2022; and (5) Plaintiff was not given the

benefit of reasonable inferences in its favor as to this claim.

(Id. at 27-30.)

For its fourth and final objection, Plaintiff contends

its Article 78 Claims should not be dismissed because the “TCA

claims should not be dismissed” and “for the reasons set forth in

Point IV of [its] Motion Brief.” (Id. at 30.)

DISCUSSION

I. Legal Standards

A. Standard of Review

A district court “may accept, reject, or modify, in whole

or in part, the findings or recommendations made by the magistrate

judge.” 28 U.S.C. § 636(b)(1)(C); see also FED. R. CIV. P. 72(b)(3).

The district judge must evaluate proper objections de novo;

however, where a party “makes only conclusory or general

objections, or simply reiterates [the] original arguments, the

Court reviews the Report and Recommendation only for clear error.”

Pall Corp. v. Entegris, Inc., 249 F.R.D. 48, 51 (E.D.N.Y. 2008)

(quoting Barratt v. Joie, No. 96–CV–0324, 2002 WL 335014, at *1

(S.D.N.Y. Mar. 4, 2002)); FED. R. CIV. P. 72(b)(3). The Court need

not review the findings and conclusions to which no proper

objection has been made. See Thomas v. Arn, 474 U.S. 140, 150

(1985).

B. Motion to Dismiss

Rule 12(b)(1) of the Federal Rules of Civil Procedure

permits a court to dismiss a claim for lack of subject matter

jurisdiction where “the district court lacks the statutory or

constitutional power to adjudicate it.” FED. R. CIV. P. 12(b)(1);

Homefront Org., Inc. v. Motz, 570 F. Supp. 2d 398, 404 (E.D.N.Y.

2008) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d.

Cir. 2000)). Where a claim is not ripe for review, or presents a

controversy that is not justiciable, such claim should be dismissed

for lack of subject matter jurisdiction pursuant to Rule 12(b)(1).

Id. (finding plaintiff’s claims should be dismissed because they

were not “ripe for review, and thus, the [c]ourt lack[ed] subject

matter jurisdiction”); Nat’l Union Fire Ins. Co. of Pittsburgh, PA

v. Hicks, Muse, Tate & Furst, Inc., No. 02-CV-1334, 2002 WL

1313293, at *4 (S.D.N.Y. June 14, 2002) (dismissing claims pursuant

to Rule 12(b)(1) because they were not justiciable).

Moreover, Rule 12(b)(6) permits dismissal of Plaintiff’s

claims where Plaintiff “fail[s] to state a claim upon which relief

can be granted.” FED. R. CIV. P. 12(b)(6). “While a complaint

attacked by a Rule 12(b)(6) motion to dismiss does not need

detailed factual allegations, a plaintiff’s obligation to provide

the ‘grounds’ of his ‘entitlement to relief’ requires more than

labels and conclusions, and a formulaic recitation of the elements

of a cause of action will not do[.]” Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555 (2007) (internal citations omitted).

II. Analysis

A. Plaintiff’s Objections Warrant Clear Error Review

Turning to Plaintiff’s Objections, the Court finds them

be “mere reiterations of the arguments in [the] original papers

that were fully considered, and rejected, by” Judge Dunst. Out of

the Blue Wholesale, LLC v. Pac. Am. Fish Co., Inc., No. 19-CV-0254,

2020 WL 7488072, at *2 (E.D.N.Y. Dec. 21, 2020) (quoting Rizzi v.

Hilton Domestic Operating Co., Inc., No. 19-CV-1127, 2020 WL

6243713, at *2 (E.D.N.Y. Oct. 23, 2020) (collecting cases)).

Indeed, each and every objection raised by Plaintiff is comprised

of arguments already asserted by Plaintiff in its underlying

Opposition. (Compare Objs. at 13-17 (arguing the Complaint alleges

Plaintiff made a good-faith effort to identify and evaluate less

intrusive alternatives to remedy the service gap which supports

its Prohibition Claim) with Opp’n, ECF No. 50, at 13 (arguing, in

support of its Prohibition Claim, the Complaint alleges “a good

faith effort to identify less intrusive alternatives”); Objs. at

17-22 (arguing Substantial Evidence Claim should not be dismissed

because it must be reviewed upon the entire record and because the

Complaint adequately alleges the Proposed Facility is a more

feasible means of providing services than the alternatives) with

Opp’n at 17-20 (arguing, as to its Substantial Evidence Claim, the

Court must consider all record evidence, and the Complaint alleges

the Proposed Facility “is a more feasible means of providing

service than available alternatives”); Objs. at 23-30 (arguing

Shot Clock Claims should be maintained against all Defendants

because of Defendants’ purportedly suspicious conduct, Defendants’

shot clock obligations run concurrently, and the Zoning Board

decision is not entitled to deference and did not provide written

denial as required by the TCA), with Opp’n at 20-31(arguing same);

Objs. at 30 (arguing Article 78 Claim should not be dismissed “for

the reasons set forth in Point IV of AT&T’s Motion Brief”); with

Opp’n at 30-31 (making said arguments).) Thus, the Court reviews

Judge Dunst’s Report for clear error.

B. Plaintiff’s Objection as to the Dismissal of Claims

Against the Zoning Board

1. Objection 1: Plaintiff’s Prohibition Claim

Under the TCA, local governments have authority over

decisions concerning the placement, construction, and modification

of personal wireless service facilities, “but may not, among other

things, ‘prohibit or have the effect of prohibiting the provision

of personal wireless services[.]’” Orange County-Poughkeepsie Ltd.

P’ship v. Town of E. Fishkill, 84 F. Supp. 3d 274, 294 (S.D.N.Y.)

(citing 47 U.S.C. § 332(c)(7)), aff’d sub nom. Orange County --

County Poughkeepsie Ltd. P’ship v. Town of E. Fishkill, 632 F.

App’x 1 (2d Cir. 2015). This portion of the TCA is commonly

referred to as the “effective prohibition provision” and

“precludes denying an application for a facility that is the least

intrusive means for closing a significant gap in a remote user’s

ability to reach a cell site that provides access to land lines[.]”

Id. (citing Sprint Spectrum L.P. v. Willoth, 176 F.3d 630, 643

(2d. Cir. 1999)). To prevail on a prohibition claim pursuant to

47 U.S.C. § 332(c)(7)(B)(i)(II), a plaintiff must show: (1) “that

a ‘significant gap’ exists in wireless coverage”; and (2) “that

its proposed facility is ‘the least intrusive means’ to close that

gap.” New Cingular Wireless PCS, LLC v. Town of Fenton, 843 F.

Supp. 2d 236, 253 (N.D.N.Y. 2012). “[A] local government may

reject an application for construction of wireless services if the

service gap can be closed by less intrusive means” such as

“selecting a less sensitive site, reducing the tower height, using

a preexisting structure, or camouflaging the tower and/or

antennae.” Id. (citing Willoth, 176 F.3d at 643) (internal

quotation marks omitted)).

In support of its Prohibition Claim, Plaintiff alleged

in its Complaint that “AT&T made a good faith effort to identify

and evaluate less intrusive alternatives to remedy a signifigant

service gap, and the Proposed Facility is the least intrusive means

of providing consistent and reliable access to AT&T customers and

FirstNet users in the service gap.” (Compl. ¶ 104.) Plaintiff

argues this statement, “in the context of the detailed factual

allegations of the other 115 paragraphs of the Complaint” is

sufficient to meet the Rule 8 pleading standard. (Objs. at 13.)

The Court disagrees and finds Judge Dunst’s dismissal of the

Prohibition Claim was not clear error.

Plaintiff’s Complaint falls short of meeting the

pleading standard as it does not assert “factual content that

allows the court to draw the reasonable inference that the

defendant is liable” on the Prohibition Claim. See Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009). Furthermore, Plaintiff’s

Prohibition Claims cannot be saved by citations in its Objections

to several enumerated paragraphs of the Complaint, all of which

either state conclusions of law, or do not factually support its

Prohibition Claim. Accordingly, Plaintiff’s Objection is

overruled and the Court adopts Judge Dunst’s recommendation to

dismiss Plaintiff’s Prohibition Claim without prejudice.3

2. Objection 2: Plaintiff’s Substantial Evidence

Claim

The TCA requires “any decision by a State or local

government or instrumentality thereof to deny a request to place,

construct or modify personal wireless service facilities” to be

“in writing and supported by substantial evidence contained in a

written record.” 47 U.S.C. § 332(c)(7)(B)(iii). Substantial

evidence is “less than a preponderance, but more than a scintilla

of evidence [and] ‘means such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.’” N.Y.

SMSA Ltd. P’ship v. Vill. of Floral Park Bd. of Trustees, 812 F.

Supp. 2d 143, 153 (E.D.N.Y. 2011) (quoting Universal Camera v.

NLRB, 340 U.S. 474, 477 (1951) (alteration in original)). If “even

one reason given for the denial [of an Application] is supported

by substantial evidence, the decision of a local zoning body cannot

3 The Court notes Plaintiff’s contention, based exclusively upon

the case law of other Circuits, that the Court must consider its

Prohibition of Services Claim de novo without deference to the

Zoning Board’s decision. (Objs. at 13-15.) The Court disagrees.

First, the case law Plaintiff cites is not binding on this Court,

and it was therefore not clear error for Judge Dunst to decline to

consider it. See Fritz v. LVNV Funding, LLC, 587 F. Supp. 3d 1,

4 (E.D.N.Y. 2022) (citations and alterations omitted). Second,

even the de novo standard was applicable, the application of such

standard would not absolve Plaintiff of his obligation to make

adequate pleadings in compliance with Rule 12(b).

be disturbed.” Id. (quoting N.Y. SMSA L.P. v. Town of Oyster Bay

Zoning Bd. of Appeals, No. 08–CV–4833, 2010 WL 3937277, at *4

(E.D.N.Y. Sept. 30, 2010)).

In its Objections, Plaintiff argues Judge Dunst failed

to draw reasonable inferences in its favor when he concluded

Plaintiff admitted it did not consider less intrusive alternatives

to the Proposed Facility, and thereby concluded there was

substantial evidence upon which the Zoning Board denied

Plaintiff’s Application. (Objs. at 17-22.) Again, the Court

disagrees. First, as cited in the R&R, there are ample instances

in the record of Plaintiff not adequately alleging the Proposed

Facility was the least intrusive means of remedying the service

gap. (R&R at 20-21 (citing instances where Plaintiff admits it

has not considered or evaluated less intrusive means of remedying

the service gap).) Moreover, as stated previously with respect to

Plaintiff’s Prohibition Claim, Plaintiff cannot save its

Substantial Evidence Claim by relying upon conclusory allegations

made in its Complaint which the Court need not accept as true.

Kleehammer v. Monroe County, 743 F. Supp. 2d 175, 180–81 (W.D.N.Y.

2010) (“[C}onclusory allegations . . . need not be accepted as

true for purposes of ruling on a motion to dismiss.”) (citing

Hirsch v. Arthur Andersen & Co., 72 F.3d 1085, 1092 (2d Cir. 1995)

(further citations omitted)). Accordingly, in the absence of clear

error, the Court overrules Plaintiff’s Objection and adopts Judge

Dunst’s recommendation to dismiss without prejudice Plaintiff’s

Substantial Evidence Claim.

3. Objection 3: Plaintiff’s Shot Clock Claims

Plaintiff’s Shot Clock Claims against the Zoning Board

fair no better. Under the TCA, a local zoning authority must act

on an application “within a reasonable period of time after the

request is duly filed” taking into consideration the nature and

scope of such request. 47 U.S.C. § 332(c)(7)(B)(ii). The parties

agree the shot clock expired on either August 18, 2022 or August

19, 2022. (Compl. ¶¶ 63, 96; Opp’n to Objs., ECF No. 58, at 13.)

The parties also agree the Zoning Board voted to deny Plaintiff’s

application on July 21, 2022 and thereafter issued a written

decision memorializing such denial and its reasoning for the denial

on August 17, 2022, the day before the agreed-upon shot clock

deadline. (Objs. at 27-28; Opp’n to Objs. at 6.) In light of

these undisputed facts, the Court is bound by Supreme Court case

law as cited by Judge Dunst which states a later-issued written

denial of an application satisfies the TCA when issued “essentially

contemporaneously” with such denial. See T-Mobile South, LLC v.

City of Roswell, 574 U.S. 293, 307 (2015) (“A locality may satisfy

its statutory obligations if it states its reasons with sufficient

clarity in some other written record issued essentially

contemporaneously with the denial.”) (See also R&R at 17.)

Hence, there is no basis to find Judge Dunst’s recommendation to

dismiss Plaintiff’s Shot Clock Claim against the Zoning Board was

clear error. Accordingly, Plaintiffs Objection is overruled and

Judge Dunst’s recommendation to dismiss Plaintiff’s Shot Clock

Claim without prejudice is hereby adopted.

C. Plaintiff’s Objections as to Dismissal of Claims Against

Non-Zoning Board Defendants

Despite its lengthy objections, Plaintiff has failed to

credibly refute Judge Dunst’s well-reasoned conclusion that all

claims against the Non-Zoning Board Defendants must be dismissed,

as the Shot Clock Claims against the Non-Zoning Board Defendants

are not ripe, and the Prohibition and Substantial Evidence Claims

do not give rise to a justiciable controversy because the

Non-Zoning Board Defendants were “divested of their authority to

act” following the Zoning Board’s denial of Plaintiff’s

Application. (See R&R at 11-14; see also Objs. in toto).

As a general matter, “[a] claim is not ripe if it depends

upon “contingent future events that may not occur as anticipated,

or indeed may not occur at all.” Nat’l Org. for Marriage, Inc. v.

Walsh, 714 F.3d 682, 687 (2d Cir. 2013). Moreover, “[t]o be

justiciable under Article III” of the Constitution “a cause of

action must be ripe—it must present ‘a real, substantial

controversy, not a mere hypothetical question.’” Berardi v.

Berardi, No. 22-CV-00159, 2023 WL 1795797, at *6 (N.D.N.Y. Feb. 7,

2023) (citing Nat’l Org. for Marriage, 714 F.3d at 687) (further

citations and quotation marks omitted)). Here, the Court finds

Judge Dunst’s recommendation that Plaintiff’s claims against the

Non-Zoning Board Defendants are either not ripe or do not present

a justiciable controversy, to be free of clear error.

There can be no dispute that the shot clock expired on

either August 18, 2022 or August 19, 2022. (Compl. ¶¶ 63, 96;

Opp’n to Objs., ECF No. 58, at 13.) Likewise, the parties

recognize the Zoning Board memorialized such decision in a writing

dated August 17, 2022. (Objs. at 27-28; Opp’n to Objs. at 6.)

Under Village Law 7 § 712-b,4 the Zoning Board has the authority

to grant or deny variance applications, and denied applications

cannot be overcome by the Non-Zoning Board Defendants.

Accordingly, on August 17, 2022, when the Zoning Board denied

Plaintiff’s Application, any action later taken by the Non-Zoning

Board Defendants would be of no consequence. This is especially

true in light of Plaintiff’s argument in its Objections that if

the Zoning Board’s denial is overturned, the Non-Zoning Board

Defendants would then have the authority to approve Plaintiff’s

Application. (Objs. at 24.) This argument proffers exactly the

type “if/then” claims that the doctrines of ripeness and

justiciability seek to avoid. (See R&R at 11-16 (discussing lack

4 Village Law 7 § 712-b states, in pertinent part: “The board of

appeals, on appeal from the decision or determination of the

administrative officer charged with the enforcement of such local

law, shall have the power to grant use variances.”

of ripeness and justiciability as reasons for recommending

dismissal of claims against the Non-Zoning Board Defendants).) The

Court thus ADOPTS Judge Dunst’s recommendation to dismiss without

prejudice Plaintiff’s claims against the Non-Zoning Board

Defendants pursuant to Rule 12(b)(6). Moreover, because the Court

adopts Judge Dunst’s recommendation to dismiss all pending federal

claims without prejudice, the Court further adopts the Magistrate

Judge’s recommendation to decline to exercise supplemental

jurisdiction over Plaintiff’s state law claims, which are

dismissed without prejudice.

CONCLUSION

For the stated reasons,5 Plaintiff’s objections are

OVERRULED, the R&R is ADOPTED as stated, and Defendants’ Dismissal

Motion (ECF No. 48) is GRANTED without prejudice.

SO ORDERED.

/s/ JOANNA SEYBERT

Joanna Seybert, U.S.D.J.

Dated: September 23, 2024

Central Islip, New York

5 To the extent Plaintiff asserts any additional discernable

objections not expressly addressed herein, the Court finds them to

be without merit.