Romano

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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JOANNE ROMANO, FOSTER ROMANO, MICHAEL

SANCHEZ, SUSAN SANCHEZ, KAREN MCKERNAN,

KEVIN MCKERNAN, VALERIE FROST, GLENNN

FROST, OYA TURKSONMEZ, CEMIL TURKSONMEZ,

STEVEN AHERN, MAUREEN AHERN, DENNIS

TRAINA, BRITTNI TRAINA, ROBERTO BELLO,

MICHAEL MORELLO, and EILEEN MORELLO,

Plaintiffs,

MEMORANDUM AND ORDER

-against- 24-CV-08910 (OEM) (ST)

ELITE TOWERS, L.P., THE TOWN OF RIVERHEAD,

TIM HUBBARD, individually, KENNETH ROTHWELL,

individually, BOB KERN, in his official capacity as

Councilman, DENISE MERRIFIELD, in her official

capacity as Councilwoman, JOANN WASKI, in her

official capacity as Councilwoman, THE WADING

RIVER FIRE DISTRICT, and NEW YORK SMSA

LIMITED PARTNERSHIP d/b/a VERIZON WIRELESS,

Defendants.

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ORELIA E. MERCHANT, United States District Judge:

On December 31, 2024, Plaintiffs Joanne Romano, Foster Romano, Michael Sanchez,

Susan Sanchez, Karen McKernan, Kevin McKernan, Valerie Frost, Glennn Frost, Oya

Turksonmez, Cemil Turksonmez, Steven Ahern, Maureen Ahern, Dennis Traina, Brittni Traina,

Roberto Bello, Michael Morello, and Eileen Morello (“Plaintiffs”) commenced this action against

Defendants Elite Towers, L.P. (“Elite”); the Town of Riverhead (“Riverhead”); Tim Hubbard, in

his individual capacity (“Hubbard”); Kenneth Rothwell, in his individual capacity (“Rothwell”);

Bob Kern, in his official capacity as Councilman (“Kern”); Denise Merrifield, in her official

capacity as Councilwoman (“Merrifield”); Joan Waski, in her official capacity as Councilwoman

(“Waski”); the Wading River Fire District (“Fire District”); and the New York SMSA Limited

Partnership d/b/a Verizon Wireless (“Verizon”) (collectively, “Defendants”) seeking declaratory

judgment, compensatory damages, punitive damages, and attorneys’ fees and costs under 42

U.S.C. § 1983 (“Section 1983”) and the New York Civil Practice Law and Rules (“CPLR”) Article

78 and § 3001. See Amended Complaint, Dkt. 19 (the “Amended Complaint” or “Am. Compl.”).

Plaintiffs challenge Riverhead’s granting of an application for a proposed wireless communication

facility in Riverhead, claiming that Defendants conspired to circumvent the procedure for

approving such applications by the Zoning Board of Appeals (the “ZBA”) in violation of Plaintiffs’

First Amendment rights to petition the government for the redress of grievances. See generally id.

Before the Court are Defendants’ fully briefed motions to dismiss the Amended Complaint

pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).1 For the following reasons,

Defendants’ motions are granted, and Plaintiffs’ Amended Complaint is dismissed in its entirety.

BACKGROUND2

A. The Parties

Plaintiffs are individual property owners or residents of Wading River, New York. Am.

Compl. ¶¶ 26-42. Elite and Verizon are limited partnerships. Id. ¶¶ 43, 54. Riverhead is a

municipal corporation duly organized and existing under the laws of New York. Id. ¶ 44. Hubbard

is the Supervisor for Riverhead. Id. ¶ 45. Rothwell is a councilman for Riverhead and member of

1 See Memorandum of Law in Support of Defendants’ Elite Towers, L.P. and New York SMSA Limited Partnership

d/b/a Verizon Wireless Motion to Dismiss Pursuant to F.R.C.P. 12(b)(1) and (6), Dkt. 44-1 (“Verizon & Elite Mot.”);

Memo of Law in Support of the Motion to Dismiss by Defendants Town of Riverhead, Tim Hubbard, Kenneth

Rothwell, Denise Merrifield, and Joann Waski, Dkt. 42-7 (“Town Defs.’ Mot.”); Declaration in Support of Defendant

Wading River Fire District’s Motion to Dismiss Plaintiffs’ Amended Complaint Pursuant to Federal Rules of Civil

Procedure Rule 12(b)(6) and 12(b)(1), Dkt. 46-1 (“Fire District Mot.”); Memorandum of Law in Opposition to

Defendants’ Motions to Dismiss, Dkt. 42-8 (“Opposition” or “Opp’n”); Reply Memorandum of Law in Further

Support of Defendants’ Elite Towers, L.P. And New York SMSA Limited Partnership d/b/a Verizon Wireless Motion

to Dismiss Pursuant to F.R.C.P. 12(b)(1) and (6), Dkt. 44-19 (“Elite & Verizon’s Reply”); Reply Memorandum of Law

in Support of Motion to Dismiss, Dkt. 42-9 (“Town Defs.’ Reply”). The Fire District joined in its co-Defendants’

application to dismiss the Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) and 12(b)(1).

See Fire District Mot. ¶¶ 5-6.

2 The following facts are taken from Plaintiffs’ Amended Complaint and are accepted as true for the purposes of

Defendants’ motions to dismiss. The Court recites only those facts relevant to resolving the pending motions to

dismiss.

the Fire District. Id. ¶ 46. Kern, Merrifield, and Waski are councilmembers for Riverhead, id.

¶ 48-50, and representatives of the Riverhead Town Board, see id. ¶ 11 (Hubbard, Rothwell, Kern,

Merrifield, and Waski collectively, the “Town Defendants”).3 The Fire District is a political

subdivision that owns real property upon which the Cell Tower is proposed to be constructed. Id.

¶¶ 51-52.

B. The Cell Tower

Elite intends to construct a cell tower (the “Cell Tower”) adjacent to Plaintiffs’ homes in

Riverhead. Id. ¶ 3. To do so, Elite submitted an application to the Riverhead Town Board (“Town

Board”).4 See id. ¶ 75. On November 7, 2024, the Town Board held a public meeting at which

Elite and Verizon requested that the Town Board conduct an In re County of Monroe, 530 N.E.2d

202 (N.Y. 1988), balancing test (the “Monroe Balancing Test”), id., which is designed “to

adjudicate the conflicting interests between two separate and distinct municipalities,” id. ¶ 12.

Elite and Verizon made this request purportedly “to avoid the required approvals of ‘three boards.’”

Id. ¶ 76. On December 3, 2024, the Town Board held another public meeting. Id. ¶ 78. At that

meeting, Plaintiffs presented a memorandum in opposition to Elite and Verizon’s request.5 The

Town Board conducted the Monroe Balancing Test and waived the requirements for the three

variances required for the Cell Tower under Riverhead’s zoning code, thereby approving the

application. Id. ¶¶ 14, 78.

3 Plaintiffs’ Amended Complaint refers to, but does not define, “Town Board Defendants.” See Am. Compl. ¶¶ 110,

119, 178. The Court understands any reference to “Town Board Defendants” in the Amended Complaint to mean

those Town Defendants sued in their official capacity: Councilmembers Kern, Merrifield, and Waski.

4 To the extent that Riverhead is implicated by the actions of the Town Board, an issue not raised or disputed by any

party in these proceedings, the Court uses Riverhead and Town Board interchangeably unless otherwise noted.

5 Plaintiffs incorporate their memorandum in opposition presented at the second Town Board meeting into their

Amended Complaint. Am. Compl. ¶ 97.

Plaintiffs allege that Elite induced Riverhead to deprive “Plaintiffs’ rights to be heard

before the ZBA by offering to tender monies, equipment, and assorted ‘perks’ to the Fire District

and/or [Riverhead.]” Id. ¶ 79. Plaintiffs also allege that Rothwell and Hubbard “affirmatively

advocated for the Town Board to circumvent both the ZBA and Plaintiffs’ rights under the First

Amendment.” Id. ¶ 81. Plaintiffs assert that the ZBA is the only statutorily designated authority

endowed with the power to approve variances such as those that were granted to Elite by the Town

Board. See id. ¶¶ 56-68. Plaintiffs claim that, as neighbors to the anticipated Cell Tower, they

face the dangers of ice fall, debris fall, and structural failures, as well as adverse aesthetic impacts

upon their homes and property values. Id. ¶¶ 93-100.

C. Procedural History

On December 31, 2024, Plaintiffs filed the complaint asserting three causes of action

against all Defendants: (1) violation of Plaintiffs’ rights to petition the government to redress

grievances, right to free speech, and prior restraint under the First Amendment, Am. Compl. ¶¶

101-24 (“First Cause of Action”); (2) conspiracy to deprive plaintiffs of their First Amendment

rights, id. ¶¶ 125-49 (“Second Cause of Action”); and (3) arbitrary, capricious, and illegal action

in violation of the Town of Riverhead Zoning Code, New York CPLR Article 78, and CPLR §

3001, id. ¶¶ 150-78 (“Third Cause of Action”).

In June 2025, Defendants filed their fully briefed motions to dismiss. Specifically,

Defendants move for dismissal of Plaintiff’s First Cause of Action and Second Cause of Action

under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim and Plaintiff’s Third

Cause of Action under Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter

jurisdiction. See Town Defs’ Mot. at 9-23; Verizon & Elite Mot. at 11-21; Fire District Mot. at ¶ 5.

LEGAL STANDARDS

A. Federal Rule of Civil Procedure 12(b)(1)

At the pleading stage, a district court must determine whether it lacks the statutory or

constitutional power to adjudicate a case and, if so, it should dismiss the case for lack of subject

matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) (“Rule 12(b)(1)”). Nike, Inc. v.

Already, LLC, 663 F.3d 89, 94 (2d Cir. 2011). “A plaintiff asserting subject matter jurisdiction has

the burden of proving by a preponderance of the evidence that it exists.” Morrison v. Nat’l Austl.

Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (quoting Makarova v. United States, 201 F.3d 110,

113 (2d Cir. 2000)).

B. Federal Rule of Civil Procedure 12(b)(6)

To survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (“Rule

12(b)(6)”), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim may be deemed facially plausible if

the alleged facts allow the court to reasonably infer “that the defendant is liable for the misconduct

alleged.” Id. (quoting Twombly, 550 U.S. at 556). The principle that a court must accept the

allegations in a complaint as true does not apply to “[t]hreadbare recitals of the elements of a cause

of action, supported by mere conclusory statements.” Id. In considering the motion to dismiss

pursuant to Rule 12(b)(6), the Court “must limit itself to facts stated in the complaint or in

documents attached to the complaint as exhibits or incorporated in the complaint by reference.”

Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir. 1991).

DISCUSSION

A. Plaintiffs’ Federal Claims Against Town Defendants, Verizon, and Elite

Plaintiffs assert that they possess standing in this action to seek redress under the First and

Fourteenth Amendments pursuant to Section 1983. Am. Compl. ¶ 100. “Section 1983 provides a

cause of action against any person who deprives an individual of federally guaranteed rights ‘under

color’ of state law.” Filarsky v. Delia, 566 U.S. 377, 383 (2012). Section 1983 requires that “(1)

the conduct complained of must have been committed by a person acting under color of state law;

and (2) the conduct complained of must have deprived a person of rights, privileges, or immunities

secured by the Constitution or laws of the United States.” Savarese v. City of New York, 547 F.

Supp. 3d 305, 337 (S.D.N.Y. 2021) (citing Pitchell v. Callan, 13 F.3d 545, 546-47 (2d Cir. 1994)).

Thus, the Court first addresses whether Plaintiffs possess standing pursuant to Section 1983 so as

to assert viable claims against Town Defendants, Verizon, and Elite.

1. Legislative Immunity: Liability of Defendants Sued in Their Official Capacities

Kern, Merrifield, and Waski argue that, as government officials, they are shielded by

absolute legislative immunity. Town Defs.’ Mot. at 20-21. Plaintiffs do not respond to this

argument this in their opposition papers, see generally Opp’n, and by failing to do so, have

conceded this point, see Francisco v. Abengoa, S.A., 559 F. Supp. 3d 286, 318 n.10 (S.D.N.Y.

2021) (“Numerous courts in this District have held that a party’s failure to address an issue in its

response to a Rule 12(b)(6) motion ‘amounts to a concession or waiver of the argument.’” (quoting

Cole v. Blackwell Fuller Music Publishing, LLC, 16-CV-7014 (VSB), 2018 WL 4680989, at *7

(S.D.N.Y. Sep. 28, 2018))); cf. Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998).

Even if Plaintiffs had not waived this argument, the Court agrees that their claims as to

Defendants sued in their official capacities are implausible due to legislative immunity. “State,

regional, and local legislators are entitled to absolute immunity from liability under 42 U.S.C.

§ 1983 for official action undertaken in ‘the sphere of legitimate legislative activity.’” Olma v.

Collins, 499 Fed. App’x 98, 99 (2d Cir. 2012) (quoting Tenney v. Brandhove, 341 U.S. 367, 376

(1951)). Legislative activity, in turn, relies “on the nature of the act, rather than on the motive or

intent of the official performing it,” Bogan v. Scott-Harris, 523 U.S. 44, 54 (1998), and requires

inquiry into whether the Town Board members’ actions as pleaded were legislative in function, see

Harhay v. Town of Ellington Bd. of Educ., 323 F.3d 206, 210 (2d Cir. 2003). Legislative immunity

extends to casting a vote on a resolution or bill. See Almonte v. City of Long Beach, 478 F.3d 100,

107 (2d Cir. 2007); NRP Holdings LLC v. City of Buffalo, 11-CV-472S, 2017 WL 745860, at *7

(W.D.N.Y. Feb. 27, 2017) (collecting cases). The Town Board6 voted to exempt the application

for the Cell Tower from zoning, Am. Compl. ¶ 82, which is a characteristically legislative function.

See, e.g., Livant v. Clifton, 334 F. Supp. 2d 321, 326 (E.D.N.Y. 2004) (reasoning that the town

board’s actions in holding a hearing, voting, and approving a resolution which authorized the

removal of a nuisance were “clearly legislative in nature”). Thus, the Town Defendants, Kern,

Merrifield, and Waski, sued in their official capacities would be subject to legislative immunity.

Plaintiffs’ claims against them are dismissed.

2. Qualified Immunity: Liability of Defendants Sued in Their Individual Capacities

Hubbard and Rothwell argue that they are entitled to qualified immunity. Town Defs.’ Mot.

at 22-23. Once again, Plaintiffs have failed to address this argument in their opposition papers.

6 The Court notes that Plaintiffs do not outright allege that Kern, Merrifield, or Waski, as Riverhead councilmembers,

were on the Town Board that cast the vote at issue. Nonetheless, for the sake of argument, the Court construes their

actions in their official capacities as those actions taken by the Town Board that are at issue here. By conceding the

point that Kern, Merrifield, and Waski are shielded by legislative immunity, Plaintiff does not place such interpretation

in dispute.

See generally Opp’n. Accordingly, for the same reasons explained above, by failing to address

this argument in their opposition papers, Plaintiffs are deemed to have conceded this point.

Even assuming arguendo that Plaintiffs had not conceded this point, they do not plausibly

allege Hubbard and Rothwell’s liability due to qualified immunity. “The doctrine of qualified

immunity protects ‘government officials performing discretionary functions’ from ‘liability for

civil damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.’” Bangs v. Smith, 84 F.4th

87, 95 (2d Cir. 2023) (quoting Francis v. Fiacco, 942 F.3d 126, 139 (2d Cir. 2019)). For a right to

be clearly established, “existing precedent must have placed the statutory or constitutional question

beyond debate.” White v. Pauly, 580 U.S. 73, 79 (2017). Defendants argue several reasons as to

why Riverhead’s action was constitutional. See, e.g., Town Defs.’ Mot. at 23; Town Defs.’ Reply

at 5-6; Elite & Verizon’s Reply at 5; cf. Sutton v. Village of Valley Stream, 96 F. Supp. 2d 189, 194

(E.D.N.Y. 2000) (“Objective reasonableness is established if reasonably competent individuals

could disagree about the legality of their actions.”). Without addressing the merits of Plaintiffs’

claims, the Court is persuaded that the unconstitutionality of the Town Board’s vote was not

“beyond debate,” that is, Plaintiffs’ First Amendment rights are not clearly established in this

context so as to draw back the shield of Hubbard and Rothwell’s qualified immunity. Accordingly,

Plaintiffs’ claims as to Hubbard and Rothwell are dismissed.

3. Liability of Verizon and Elite

The First Amendment restricts federal and state agencies, not private parties.

Consequently, a litigant claiming that his constitutional rights have been violated must first

establish that the challenged conduct constitutes ‘state action.’” United States v. Int’l. Bhd. of

Teamsters, 941 F.2d 1292, 1295 (2d Cir. 1991). Here, Plaintiffs allege that Elite and Verizon

conspired with Hubbard and Rothwell to persuade the Town Board to conduct a Monroe Balancing

Test, which deprived Plaintiffs of their constitutional rights. Am. Compl. ¶¶ 72-73, 79. Elite and

Verizon argue that Plaintiffs’ First Amendment claim against them fails because they are private

parties created for private purposes, and the Amended Complaint did not allege that Elite or

Verizon were compelled by the Town Board to take action or alleged to be the responsible party

for applying the Monroe Balancing Test and adopting the resolution. Verizon & Elite Mot. at 12-

13. Plaintiffs appear to counter that their claims against Verizon and Elite survive because they

have alleged that they functioned as state actors. See Opp’n. at 15 (citing Am. Compl. ¶¶ 72-82),

20.

To “establish a defendant’s individual liability in a suit brought under § 1983, a plaintiff

must show . . . the defendant’s personal involvement in the alleged constitutional deprivation.”

Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir. 2013); see also Littlejohn v. City of New

York, 795 F.3d 297, 314 (2d Cir. 2015). The actions of a private party are attributable to the state

when:

(1) the entity acts pursuant to the “coercive power” of the state or is “controlled”

by the state (“the compulsion test”); (2) when the state provides “significant

encouragement” to the entity, the entity is a “willful participant in joint activity with

the [s]tate,” or the entity's functions are “entwined” with state policies (“the joint

action test” or “close nexus test”); or (3) when the entity “has been delegated a

public function by the [s]tate,” (“the public function test”).

Sybalski v. Indep. Grp. Home Living Program, Inc., 546 F.3d 255, 257 (2d Cir. 2008) (citing

Brentwood Acad. v. Tenn. Secondary Sch. Ath. Ass’n, 531 U.S. 288, 296 (2001)).

Plaintiffs do not allege that Verizon or Elite acted pursuant to the coercive power of the

state or that they were delegated a public function by the state. Indeed, they allege that Verizon

and Elite persuaded the Town Board, not the other way around. Thus, the Court considers whether

the actions alleged as to these Defendants meet the requisites of the joint action test. “A charge of

joint action amounts to alleging some agreement between private and public actors to violate

plaintiff’s constitutional rights.” Betts v. Shearman, 751 F.3d 78, 85 (2d Cir. 2014). The Second

Circuit has advised that

A nexus of state action exists between a private entity and the state when “the state

exercises coercive power, is entwined in the management or control of the private

actor, or provides the private actor with significant encouragement, either overt or

covert, or when the private actor operates as a willful participant in joint activity

with the State or its agents, is controlled by an agency of the State, has been

delegated a public function by the state, or is entwined with governmental policies.”

Flagg v. Yonkers Sav. & Loan Ass’n, FA, 396 F.3d 178, 187 (2d Cir. 2005) (quoting Cranley v. Nat’l

Life Ins. Co. of Vt., 318 F.3d 105, 112 (2d Cir. 2003)).

Plaintiffs allege that Verizon and Elite operated as willful participants in joint activity with

Riverhead, via the Town Board, by asking the Town Board to conduct a Monroe Balancing Test to

exempt them from zoning requirements. Am. Compl. ¶¶ 11, 13, 75-76. However, Plaintiffs do not

allege that Verizon and Elite applied the Monroe Balancing Test. The Town Board acted of its own

accord in conducting the Monroe Balancing Test and approving the application. Verizon and Elite

requesting the Town Board to apply the test is no different from Plaintiffs petitioning the Town

Board in their opposition. To infer joint action out of a private entity requesting the public entity

take some action, whether the requested action is a circumvention of procedure or not, does not

plausibly satisfy the nexus contemplated in the joint action test.

Further, Plaintiffs’ conspiracy allegations that Elite induced the Town Board to act in excess

of its statutory power, Am. Compl. ¶ 79, do not plausibly state a claim. A Section 1983 conspiracy

claim must allege sufficient facts to suggest “(1) an agreement between two or more state actors

or between a state actor and a private entity; (2) to act in concert to inflict an unconstitutional

injury; and (3) an overt act done in furtherance of that goal causing damages.” Pangburn v.

Culbertson, 200 F.3d 65, 72 (2d Cir. 1999). “A merely conclusory allegation that a private entity

acted in concert with a state actor” is insufficient. Ciambriello v. County of Nassau, 292 F.3d 307,

324 (2d Cir. 2002). A plaintiff “must come forward with specific circumstantial evidence that each

member of the alleged conspiracy shared the same conspiratorial objective.” Kellner v. City of

New York, 17-cv-1268 (NRM) (MMH), 2025 WL 3507346, at *22 (E.D.N.Y. Dec. 8, 2025)

(quoting Gordon v. Emmanuel, 25-CV-2439 (CBA) (SJB), 2018 WL 4688935, at *9 (E.D.N.Y.

Sep. 28, 2018)). Plaintiffs’ allegations that Elite and Verizon conspired with Town Defendants “by

entering into a meeting of the minds, wherein they agreed to act in concert[,]” Am. Compl. ¶ 127,

is entirely conclusory. Plaintiffs’ factual allegations do not provide remedy. Plaintiffs’ conclusory

suggestion that Elite “induced” Riverhead to act in excess of its powers, id. ¶ 79, does not show a

meeting of the minds or suggest a quid pro quo agreement between Elite and Riverhead. Plaintiffs

do not allege how Verizon may have participated in the conspiracy, short of asking the Town Board

to apply the Monroe Balancing Test, which lacks circumstantial evidence of an agreement between

Verizon, the Town Board, or Riverhead. In addition, for the reasons explained below, Plaintiffs’

conspiracy claim is insufficient because they do not plausibly allege an “unconstitutional injury.”

Thus, the Court finds that Verizon and Elite are not liable under Section 1983 as their

conduct does not rise to the level of state action. Accordingly, Plaintiffs’ claims against them are

dismissed.

B. Plaintiffs’ Federal Claims Against Riverhead and the Fire District

Next, the Court turns to whether Plaintiffs plausibly allege claims that Riverhead and the

Fire District deprived, or conspired to deprive, Plaintiffs of their First Amendment rights.

1. First Amendment Claim

a. Right to Petition the Government to Redress Grievances

Plaintiffs allege that by not having the opportunity to petition the ZBA regarding their

objections to the Cell Tower, Riverhead and the Fire District permanently deprived them of their

First Amendment right to petition the government. See Am. Compl. ¶¶ 102-06. Riverhead and

the Fire District move to dismiss Plaintiffs’ First Cause of Action arguing that Plaintiffs had notice

of the Town Board meetings held to discuss the Cell Tower and an opportunity to submit their

opposition. Town Defs.’ Mot. at 14. They contend that because the Town Board did not restrict

Plaintiffs’ attendance or speech in opposition, the Town Board’s ultimate rejection of the arguments

in opposition did not violate Plaintiff’s right to petition. Id. at 15.

The right to petition the government for redress of grievances is “among the most precious

of the liberties safeguarded by the Bill of Rights.” United Mine Workers, Dist. 12 v. Ill. State Bar

Ass’n, 389 U.S. 217, 222 (1967); Franco v. Kelly, 854 F.2d 584 (2d Cir. 1988). “The right to

petition in general guarantees only that individuals have a right to communicate directly to

government officials, and that individuals have the right of access to the courts to redress

constitutional violations.” Kittay v. Giuliani, 112 F. Supp. 2d 342, 354 (S.D.N.Y. 2000), aff’d, 252

F.3d 645 (2d Cir. 2001). This includes the right “to complain to public officials and to seek

administrative and judicial relief.” Gagliardi v. Village of Pawling, 18 F.3d 188, 194 (2d Cir. 1994)

(citing Franco, 854 F.2d at 589). The First Amendment protects conduct such as “attend[ing]

public meetings and hearings of the Board of Trustees, the Planning Board and the ZBA.” Id. at

195; see also Abraham v. Town of Huntington, 17-cv-03616 (ADS)(SIL), 2018 WL 2304779, at

*11 (E.D.N.Y. May 21, 2018). However, the First Amendment “does not guarantee . . . that an

elected official will necessarily act a certain way or respond in a certain manner to requests from

his constituents.” Kittay, 112 F. Supp. 2d at 354 (citing Minn. State Bd. for Cmty. Colls. v. Knight,

465 U.S. 271, 285 (1984)). It also “does not impose any affirmative obligation on the government

to listen, [or] to respond.” Smith v. Ark. State Highway Emps., Local 1315, 441 U.S. 463, 465

(1979).

Plaintiffs do not allege that the Town Board prohibited them from attending meetings or

hearings or from seeking relief by presenting opposition; in fact, Plaintiffs do not dispute that they

had notice of the Town Board meetings and an opportunity to present opposition. See Am. Compl.

¶ 97. Although the approval was not the result Plaintiffs desired, Plaintiffs were not deprived of a

right to complain. Plaintiffs do not cite any authority to support their argument that an allegedly

“illusory” Town Board meeting that otherwise heard their opposition but restricted them from

presenting that opposition to the ZBA violates their right to petition. In fact, in EklecCo NewCo

LLC v. Town of Clarkstown, the court held that the plaintiffs did not state a facially plausible claim

that the defendants deprived them of their right to petition by restricting them from directly

applying to the planning board because the plaintiffs were still permitted to petition the town board

for relief and did so. 16-CV-6492 (NSR), 2019 WL 2210798, at *11 (S.D.N.Y. May 21, 2019).

See also Weiss v. Incorp. Village of Sag Harbor, 762 F. Supp. 2d 560, 575 (E.D.N.Y. 2011) (holding

that the plaintiff did not plausibly allege that the defendant deprived her of her right to petition

because even if a law or policy made it more difficult to organize voter initiatives, the plaintiff

remained free to advocate her position or file a petition). Therefore, Plaintiffs do not plausibly

allege that Riverhead or the Fire District violated their right to petition and this claim is dismissed.

b. Prior Restraint

Next, the Court considers whether Plaintiffs state a plausible claim that the Town Board’s

approval of Elite’s Cell Tower application amounted to prior restraint of speech. Plaintiffs allege

that, by granting approval of the Cell Tower, Riverhead and the Fire District circumvented the

application and approval process before the ZBA, where Plaintiffs could have appeared and been

heard, thereby imposing a permanent prior restraint on Plaintiffs’ Free Speech rights. Am. Compl.

¶¶ 109-10. “A ‘prior restraint’ on speech is a law, regulation or judicial order that suppresses

speech—or provides for its suppression at the discretion of government officials—on the basis of

the speech’s content and in advance of its actual expression[,]” and “such restraints constitute ‘the

most serious and the least tolerable infringement’ on our freedoms of speech and press.” United

States v. Quattrone, 402 F.3d 304, 309 (2d Cir. 2005) (quoting Neb. Press Ass’n v. Stuart, 427 U.S.

539, 559 (1976)). Accordingly, a prior restriction carries a heavy presumption against its

constitutionality. United States v. Salameh, 992 F.2d 445, 446-47 (2d Cir. 1993) (per curiam)

(citing Neb. Press Ass’n v. Stuart, 427 U.S. 539, 570 (1976)). A government action “constitutes a

prior restraint when it is directed at suppressing speech because of its content before the speech is

communicated.” In re G. & A. Books, Inc., 770 F.2d 288, 296 (2d Cir. 1985).

Although allegations that a town board prevented parties from presenting their message at

a public forum has been found to be more than a speculative prior restraint, see Abraham, 2018

WL 2304779, at *12, that is not the case here. Plaintiffs do not allege that Riverhead’s or the Fire

District’s law or regulation suppressed their speech in opposition to the Cell Tower. Nor do they

allege that they were prevented from presenting their message to the Town Board. Instead,

Plaintiffs argue that, by the Town Board approving the application, it barred them from

representing their opposition to the purportedly appropriate governmental body, the ZBA. Such

action does not fall within the purview of a prior restraint. That the Town Board’s approval of the

application may have prohibited the ZBA from considering the application does not equate to

premeditatively suppressing the content of Plaintiffs’ opposition. Plaintiffs’ have not sufficiently

pled a claim of prior restraint in violation of their First Amendment rights as to Riverhead and the

Fire District. Accordingly, Plaintiffs’ First Cause of Action is dismissed.

2. Conspiracy Claim

To allege a Section 1983 conspiracy claim, a constitutional cause of action must be

established. See Droz v. McCadden, 580 F.3d 106, 109 (2d Cir. 2009) (citing Singer v. Fulton Cnty.

Sheriff, 63 F.3d 110, 119 (2d Cir. 1995)). Because Plaintiffs have failed to allege a violation of

their First Amendment rights, Plaintiffs’ Second Cause of Action cannot succeed.

C. Supplemental Jurisdiction over Plaintiffs’ New York State-Law Claims

The Court further declines to exercise supplemental jurisdiction over Plaintiffs’ remaining

New York state-law claims under CPLR Article 78 and CPLR § 3001. See Levy v. BASF Metals

Ltd., 15-cv-7317 (GHW), 2017 WL 2533501, at *9 (S.D.N.Y. June 9, 2017), aff’d, 917 F.3d 106

(2d Cir. 2019). Under 28 U.S.C. § 1367(c)(3), a district court may decline to exercise supplemental

jurisdiction over state-law claims where it has dismissed all federal claims over which it had

original jurisdiction. Indeed, “[t]he overwhelming majority of district courts confronted with the

question of whether to exercise supplemental jurisdiction over Article 78 claims have found that

they are without power to do so or have declined to do so.” Bens BBQ, Inc. v. County of Suffolk,

19-CV-3584 (SJF)(ARL), 2020 WL 3790349, at *2 (E.D.N.Y. July 7, 2020) (collecting cases),

aff’d, 858 Fed. App’x 4 (2d Cir. 2021).

CONCLUSION

For the foregoing reasons, Defendants’ motions are granted, and Plaintiffs’ Amended

Complaint is dismissed in its entirety.

SO ORDERED.

/s/

ORELIA E. MERCHANT

United States District Judge

February 26, 2026

Brooklyn, New York