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CARINO v. TOWN OF DEERFIELD
November 23, 1990
JOSEPH CARINO, SR., AND SYLVIA CARINO AND JOSEPH A. CARINO, PLAINTIFFS,
TOWN OF DEERFIELD (ONEIDA COUNTY, NEW YORK) AND HARRON CABLE TELEVISION, DEFENDANTS.
The opinion of the court was delivered by: McCURN, Chief Judge.
MEMORANDUM-DECISION AND ORDER
The plaintiffs are now moving for partial judgment on the
pleadings pursuant to Fed.R.Civ.P. 12(c), and for partial
summary judgment pursuant to Fed.R.Civ.P. 56. Defendants state
that they are moving, "[f]or an Order granting summary
judgment dismissing the Complaint on the ground of res judicata
and on the ground that the Complaint does not state a claim
upon which relief can be granted." Defendants' Notice of
Cross-Motion at 1. The court notes in passing that from a
procedural standpoint, none of the parties properly framed
their notices of motions. Plaintiffs' notice of motion is
inconsistent in that it seeks relief under both Rule 12(c) and
Rule 56. Defendants' notice of motion is also inconsistent in
that it seeks relief under both Rule 12(b)(6) and Rule 56.
The parties are advised to be more careful when drafting
future notices of motion. There is a difference, of which
lawyers practicing before this court should be fully aware,
between a motion made pursuant to Rule 12(b)(6) or 12(c) and
one made pursuant to Rule 56. Plaintiffs and defendants are
asking this court to make determinations based solely on the
pleadings and to consider matters outside the scope of the
pleadings. Inherent in a Rule 12(b)(6) or 12(c) motion is the
fact that a court may not consider matters outside the
pleadings. Indeed, when a court does consider matters outside
the scope of the pleadings, according to those Rules, the court
must treat such motion as one for summary judgment pursuant to
Rule 56. Thus, because the parties asked the court to consider
matters outside the pleadings, the court, as it must, has
converted these motions to summary judgment motions and the
parties were so advised. In particular, the court has treated
plaintiffs' motion as one for partial summary judgment on the
issue of liability;*fn2 similarly, it has treated defendants'
cross-motion as one for summary judgment.
A Deerfield zoning ordinance prohibits, in certain
residential districts, the erection of dish-type and
tower-type antennae on any lot less than one-half acre in
size. The zoning ordinance states in relevant part:
Section 17 — Accessory Buildings, Dish and Tower
Type Antennae; Solar Energy System; Wind Energy
B. Dish or Tower Type Antennae: General
1. In R-1 or R-2 District no dish or tower type
antennae shall be erected on any lot less than one
half (1/2) acre.*fn3 . . . .
ANTENNAE, DISH: Consists of three main components
— the antennae itself, often called a dish; a
low-noise amplifier (LNA) and a receiver. The
antennae and LNA are generally located outdoors and
are connected by coaxial cable to the receiver,
which is usually placed indoors.
ANTENNAE, TOWER TYPE: A structure weighing more
than one hundred (100) pounds utilized to
transmit and/or receive electromagnetic waves
(i.e. radio, television, short wave signals).
After receiving the appearance ticket, but prior to his
conviction, Carino applied for a building permit for the
system. The Deerfield Building Inspector, Robert Kozlowski,
denied that application. According to Mr. Kozlowski, the
property on which the system was located was not one-half acre
or larger, as required by § 17(B)(1) of the zoning ordinance.
See Affidavit of Joseph A. Carino (January 19, 1989), Ex. A
("Record")*fn4 at 28 (Variance Application Transcript).
Carino next filed an application for a variance on his
parents' property with the Deerfield Zoning Board of Appeals
("Zoning Board"). The Zoning Board held hearings on the
variance application on March 18, and April 6, 1987. After an
extensive review of the circumstances, the Zoning Board
determined that Carino failed to obtain a building permit
prior to installing his system as required by § 17(B)(3)*fn5
of the zoning ordinance. Record at 62. The Zoning Board also
found that no hardship was placed on Carino through the
enforcement of the ordinance. Id. at 44. The Zoning Board
refused to address Carino's contention that the ordinance was
preempted by the FCC regulation codified at 47 C.F.R. §
25.104.*fn6 Id. at 57. For those reasons, the Zoning Board
denied Carino's application for a variance.
Carino next commenced an Article 78 proceeding*fn7 in New
York State Supreme Court to challenge the Zoning Board's
decision. Named as respondents in that proceeding were the
Zoning Board and the individual members of that Board. The
Town of Deerfield, a defendant herein, was not named as a
The state supreme court found without merit Carino's
contention that the Zoning Board's decision was arbitrary and
not supported by substantial evidence. Id. at 6. The state
court next found that Carino's claim that the zoning ordinance
violated his equal protection rights was specious. Id. Finally,
the court determined that there was no basis for Carino's
preemption claim. Id. at 7. The state court therefore denied
Carino's petition in its entirety. Id.
Defendants first assert that the doctrine of res judicata
bars plaintiffs from relitigating the issues raised in this
action based upon a prior state court judgment.*fn9 "A federal
court must give to a state-court judgment the same preclusive
effect as would be given that judgment under the law of the
State in which the judgment was rendered." Migra v. Warren City
School Dist. Bd. of Educ., 465 U.S. 75, 81, 104 S.Ct. 892, 896,
79 L.Ed.2d 56, 61, (1984). Thus, the law of New York controls
the preclusionary effect of the prior decisions in this action.
See Application of American Tobacco Co., 880 F.2d 1520, 1526
(2d Cir. 1989).
New York has adopted the "transactional analysis" approach
in deciding res judicata issues. . . ." O'Brien v. City of
Syracuse, 54 N.Y.2d 353, 357, 445 N.Y.S.2d 687, 688,
429 N.E.2d 1158, 688-89 (Ct.App. 1981) (citation omitted); American
Tobacco, 880 F.2d at 1526-27. The New York Court of Appeals has
explained, "Under this address, once a claim is brought to a
final conclusion, all other claims arising out of the same
transaction or series of transactions are barred, even if based
upon different theories or if seeking a different remedy." Id.
(citation omitted). This bar against later claims based upon
the same cause of action is subject to certain limitations. One
limitation, which is of particular significance for purposes of
this motion, is that res judicata will not be applied if the
initial forum did not have the power to award the full measure
of relief sought in the later litigation. Davidson v. Capuano,
792 F.2d 275, 278 (2d Cir. 1986). Thus, in the present case,
defendants cannot prevail on their res judicata defense if the
state court did not have the power to award the full measure of
damages which plaintiffs are seeking in this subsequent
New York state courts may award damages in Article 78
proceedings only if two conditions are met. First, the damages
must be "incidental to the primary relief sought," and second,
the relief must be "such as [the petitioner] might otherwise
recover on the same set of facts in a separate action or
proceeding suable in the supreme court against the same body
or officer in its or his official capacity." N.Y. Civ.Prac.L.
& R. § 7806 (McKinney 1981) ("CPLR"). The Second Circuit has
recognized that there is "substantial" New York case law
indicating that damages for civil rights violations are not
incidental to the primary relief sought in an Article 78
proceeding. Davidson, 792 F.2d at 278-79. Therefore, in
Davidson the Second Circuit held that plaintiffs' damages for
alleged civil rights violations could not be characterized as
incidental to the primary relief sought in the Article 78
proceeding, and so could not have been awarded under § 7806.
Consequently, in Davidson plaintiff's subsequent federal court
action was not barred by res judicata, despite the fact that
that action arose out of the same set of facts as did
plaintiff's prior state court ...