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November 23, 1990


The opinion of the court was delivered by: McCURN, Chief Judge.



The plaintiffs have brought this action to challenge the validity of a Town of Deerfield ("Deerfield") zoning ordinance prohibiting the erection of dish-type and tower-type antennae on housing lots which are less than one-half acre in size. Although the complaint is somewhat inartfully drafted, it appears to the court that plaintiffs, Joseph Carino, Sr., Sylvia Carino and Joseph A. Carino ("Carino"),*fn1 are raising various claims pursuant to 42 U.S.C. § 1983 and 1985. Basically, plaintiffs' § 1983-based claims allege that the zoning ordinance deprives them of equal protection and due process of law; and that it deprives them of an alleged first amendment right of access to information. Plaintiffs further contend that defendants, the Town of Deerfield ("Deerfield") and Harron Cable Television ("Harron Cable"), have engaged in a conspiracy to deprive them of the above mentioned rights in violation of 42 U.S.C. § 1985. Plaintiffs also contend that the Deerfield zoning ordinance is preempted by a federal regulation issued by the Federal Communications Commission ("FCC").

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
  Conversion Systems
  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 respondent.

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.

Carino then appealed that decision to the New York State Appellate Division, Fourth Department. The Appellate Division unanimously affirmed the lower court decision "[f]or the reasons set forth in the memorandum at Special Term. . . ." Carino v. Pilon, 142 A.D.2d 996, 530 N.Y.S.2d 1022 (4th Dep't 1988). The Appellate Division observed, "[w]e add only that an article 78 proceeding is not the proper proceeding in which to challenge the constitutionality of a zoning ordinance." Id. Subsequently, on its own motion, the New York Court of Appeals dismissed Carino's appeal taken as of right because no "[s]ubstantial constitutional question [was] directly involved." Carino v. Pilon, 72 N.Y.2d 1038, 534 N.Y. So.2d 935, 531 N.E.2d 655 (1988). It also denied Carino's motion for leave to appeal.*fn8 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 litigation.

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 ...

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