Feinberg v. Apple Inc.

Filing 43

OPINION & ORDER re: 36 MOTION to Dismiss / Notice of Defendant's Motion to Dismiss the Second Amended Complaint. filed by Apple Inc. For the foregoing reasons, the Court concludes that Feinberg lacks standing to bring this act ion against Apple and that, in any event, his SAC fails to state a claim. Because further amendment would be futile, Apple's motion to dismiss the SAC is granted with prejudice. The Clerk of Court is respectfully directed to enter judgment in favor or Apple and close the case. (As further set forth in this Order.) (Signed by Judge Ronnie Abrams on 8/10/2016) (cf)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

USDC-SDNY
DOCUMENT
ELECTRO NI CALLY FILED
DOC#:
DATE FILED: 8/10/2016

HERBERT FEINBERG,
Plaintiff,

No. 15-CV-5198 (RA)

V.

OPINION & ORDER

APPLE, INC.,
Defendant.

RONNIE ABRAMS, United States District Judge:
Plaintiff Herbert Feinberg filed this action alleging that Defendant Apple, Inc. 's retail store
on East 74th Street in Manhattan constitutes a nuisance and a fire hazard. Apple moves to dismiss
the Second Amended Complaint ("SAC") for lack of standing and failure to state a claim. The
motion is granted.

BACKGROUND
Feinberg is a resident of East 74th Street in Manhattan who had long opposed Apple's plan
to open a retail store (the "Store") "located eighty-seven and one half (87 1/2) feet from" his home.
SAC ,-i,-i 2, 6. He "is a member and leader of a group of neighbors ... all of whom are united in
their opposition to the opening of' Apple's Store. SAC ,-i 2. In that capacity, Feinberg claims to
have collected "over four hundred (400) petition signatures," and "contacted government agencies
to no avail as well as attempted in good faith to negotiate with Apple, also to no avail." SAC ,-i,-i
7, 16.
Having "sent letters to the authorities confirming that each has no intention of bringing"
an action against Apple, SAC ,-i 12, on June 3, 2015, Feinberg filed suit for an injunction in the
Supreme Court of the State of New York, County of New York. On June 12, 2015, Feinberg

amended his complaint for the first time. On June 13, 2015, the Store opened. SAC ii 17. On July
2, 2015, Apple removed the case to this Court and on August 19, 2015, Apple moved to dismiss
the First Amended Complaint. On September 16, 2015, Feinberg moved to amend his complaint
a second time. On November 30, 2015, having received leave of the Court, Feinberg filed the
SAC.
According to the SAC, Apple, "by establishing a retail store in the neighborhood and
operating it as it does other of its retail stores, will interfere with his right of quiet enjoyment as
well as the right of quiet enjoyment of other homeowners and residents." SAC

ii 6. Feinberg

asserts that "Plaintiff has every reason to believe that Apple's operations and activities ... will
constitute a private nuisance to himself and a public nuisance to the neighborhood." SAC

ii 10.

In particular, he predicts that "there will be a massive increase in pedestrian traffic," SAC

ii 19,

that "the very existence of an Apple store creates and multiplies crowds," SAC

ii 24, and that

Apple's product launch schedule will cause "the occupation of the neighborhood, its sidewalks,
and its streets, by long lines of Apple customers," SAC

ii 32. Among other things, Feinberg

worries that "[m]obile food trucks will park at the Madison Avenue corner," SAC

ii 38, hot dog

vendors and customers will cause residents-especially the elderly-to be "pushed, jostled, and
put at a safety risk," SAC ii 40, and that the Store may have "noisy Rock N Roll concerts" requiring
"police intervention," SAC iii! 44-45.
Feinberg "makes these allegations based on the analysis of Apple Stores at other locations
and their operations." SAC ii 27. Because "each of the instances of nuisance conditions set forth
in this complaint have already occurred at some or all of the existing Apple stores in Manhattan,"
he asserts, "[t]his establishes the probability that these same conditions and circumstances will

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take place if the store operates on Madison Avenue and 74th Street in the same or similar manner
to other locations unless this Court intervenes and orders appropriate relief." SAC ii 17.
Plaintiff also alleges that the Store presents "a serious question of fire safety which Apple
refuses to address, other than stating it has all necessary building permits and authorizations."
SAC ii 53. His complaint describes a "walk through" that revealed various fire hazards including
"a passageway that is potentially a serious problem in the event that significant numbers of people
need to evacuate," SAC ii 62, "a locked exit access door," SAC ii 63, and a set of doors for which
"in the event there is a malfunction in any way in the 'unlocking mechanism' ... there is not [sic]
apparent escape," SAC ii 65. In support, Plaintiff offers the "evidence proffered by an expert ...
Tim Collins, the fire safety and protection engineer[] engaged by Plaintiff." Pl.'s Mem. at 9.
Collins "believe[ s] there [are] a number of facts presenting potential concern," including "a
substantial quantity of combustible items ... in the primary means of egress corridor," a failure to
submit a "Fire Protection Plan," and various other purported New York City Fire Code violations.
See Affidavit of Tim Collins, Ex. C.

Ultimately, Collins declines to "make a definitive

determination at this point because [he has] not surveyed the premises in its entirety." Id.
STANDARD OF REVIEW

"To survive a motion to dismiss, 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, 566
U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 570 (2007)). "A
claim has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 566
U.S. at 678. On a motion to dismiss, the Court accepts as true all well pied factual allegations in
the complaint and draws all inferences in a plaintiff's favor. See id.

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DISCUSSION

Apple moves to dismiss the SAC because Feinberg has yet to suffer a cognizable injury
such that he lacks standing and fails to state a claim for public nuisance, private nuisance, or fire
code violations. Apple further asserts that because Feinberg has twice amended his complaint,
additional repleading would be futile. The Court agrees and dismisses Feinberg's action with
prejudice.
I.

Standing

Feinberg lacks standing to assert claims against Apple. "Article III of the Constitution
limits the jurisdiction of federal courts to the resolution of' cases' and 'controversies."' WR.
HuffAsset Mgmt. Co., LLC v. Deloitte & Touche LLP, 549 F.3d 100, 106 (2d Cir. 2008) (quoting

U.S. Const. art. III, § 2). "In order to ensure that this bedrock case-or-controversy requirement is
met, courts require that plaintiffs establish their standing as the proper part[ies] to bring suit."
Selevan v. New York Thruway Auth., 584 F.3d 82, 89 (2d Cir. 2009) (citation omitted) (alteration

in original); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). To have
standing "a plaintiff must demonstrate (1) a personal injury in fact (2) that the challenged
conduct of the defendant caused and (3) which a favorable decision will likely redress." Mahon
v. Ticor Title Ins. Co., 683 F.3d 59, 62 (2d Cir. 2012). "For an alleged injury to support

constitutional standing, it 'must be concrete and particularized' and 'actual or imminent, not
conjectural or hypothetical."' Knife Rights, Inc. v. Vance, 802 F.3d 377, 383 (2d Cir. 2015)
(quoting Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014)).
Apple argues that Feinberg "does not allege that he has personally suffered or is in
imminent danger of suffering a concrete injury." Def.'s Mem. at 9. Feinberg contends that "[t]he

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proximity of [his] property to the Apple Store ... demonstrates that there is standing as Plaintiff
and his home are in the 'zone of danger."' Pl.' s Mem. at 9.
Feinberg's claims are too speculative to support standing. The SAC recounts purported
issues at Apple's other retail stores and concludes that such allegations "establish[] the probability
that these same conditions and circumstances will take place if the store operates on Madison
Avenue and 74th Street in the same or similar manner to other locations." SAC

i!

16. Despite

having amended his complaint more than five months after Apple's Store opened, however,
Feinberg does not allege that this feared parade of horribles has occurred and, indeed, Feinberg's
briefing acknowledges that "no disturbances have yet occurred since the June 13, 2015 store
opening." Pl.' s Mem. at 3.
In Morgan v. Cty. ofNassau, 720 F. Supp. 2d 229 (E.D.N.Y. 2010), the court considered a
similarly speculative claim by a member of a veterans group, Iraq Veterans Against the War, who
sought to enjoin police in Nassau County from using "mounted officers for crowd control." Id. at
243. The court declined to grant the requested relief because the plaintiffs allegation that

'"if

there are future Iraq Veterans Against the War events in Nassau County, [the plaintiff] may travel
to participate in them' is precisely the kind of hypothetical harm that is insufficient to confer
standing on a plaintiff."

Id. at 244 (emphasis and alteration in original).

Here, Feinberg's

allegations as to the harm he may suffer "if the store operates" in a certain fashion are similarly
speculative and hypothetical.

These mere predictions of harm are insufficient to confer

constitutional standing.
Feinberg's reliance on Ross v. Bank of Am., NA. (USA), 524 F.3d 217 (2d Cir. 2008) is
misplaced.

In that case, the Second Circuit found that the district court had not addressed

plaintiffs' anti-trust claims, which conferred standing because the complaint alleged actual

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competitive harm. Id. at 223. Here, no such actual harm has been alleged. To the extent Feinberg
relies on Ross's admonition that "[i]njury in fact is a low threshold, which we have held need not
be capable of sustaining a valid cause of action, but may simply be the fear or anxiety of future
harm," id. at 222, his reliance is also baseless. Since Ross, the Second Circuit has clarified that
allegations of fear or anxiety of future harm are alone insufficient to confer standing. Instead,
"such fears may support standing when the threat creating the fear is sufficiently imminent."
Hedges v. Obama, 724 F.3d 170, 195 (2d Cir. 2013). Feinberg's allegations that he may suffer

harm at some unidentified point in the future do not meet this standard. Indeed, now, more than
one year after the Store opened, Feinberg himself acknowledges that none of this fears have yet
come to fruition.
As the SAC does not sufficiently allege an injury-in-fact, Feinberg lacks standing and the
SAC must be dismissed.

II.

Failure to State a Claim
Even if Feinberg had standing to bring this action, the Court would nonetheless dismiss the

SAC because Feinberg fails to state a claim for private nuisance, public nuisance, or fire code
violations.

A.

Private Nuisance Claim

Feinberg asserts a private nuisance claim based on the "reasonably foreseeable
consequences of Apple establishing a retail store ... that will violate his individual rights by reason
of his home's location and close proximity to the Apple store." SAC~~ 69-70. In particular,
Feinberg asserts that his home "should not be subject to the unique hazards that are presented by
the Apple store if its usual and customary operations in other locations will take place in the

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neighborhood" including, "material injury to himself and property damage to his home." SAC,-[,-[
6, 8.
To bring a claim for private nuisance under New York Common Law, a plaintiff must
allege, "'(l) an interference substantial in nature, (2) intentional in origin, (3) unreasonable in
character, (4) with a person's property right to use and enjoy land, (5) caused by another's conduct
in acting or failure to act."' Gussack Realty Co. v. Xerox Corp., 224 F.3d 85, 93 (2d Cir. 2000)
(quoting Scribner v. Summers, 84 F.3d 554, 559 (2d Cir. 1996)).
Feinberg's private nuisance claim fails for substantially the same reasons he lacks standing:
the purported interference is purely speculative in nature. In the SAC-filed over five months
after the Store opened-he neither alleges that he has been harmed since the opening nor that the
harm is imminent. In Balunas v. Town of Owego, 867 N.Y.S.2d 788 (N.Y. App. Div. 2008), the
New York Appellate Division for the Third Department, dismissed an "action alleging that
construction of [a] water tank on land abutting plaintiffs' property would constitute private
nuisance." Id. at* 1. That court rejected as insufficient to state a private nuisance claim "plaintiffs'
allegation that their home would be damaged in the event of a tank rupture ... inasmuch as such
danger is speculative and theoretical, rather than 'known or substantially certain to result.'" Id. at
*2 (quoting Christenson v. Gutman, 671 N.Y.S.2d 835, 839 (N.Y. App. Div. 1998)). Similarly
here, Feinberg's allegations of impending crowds and fire hazard are "speculative and theoretical."
Id; see also Greentree at Murray Hill Condo. v. Good Shepherd Episcopal Church, 146 Misc. 2d

500, 512 (N. Y. Sup. Ct. 1989) (dismissing plaintiffs' "claim of irreparable harm" from the opening
of a homeless shelter because it was "based solely on speculative fears of crime, drugs and
diminution of property values").

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Vacca v. Valerino, 16 A.D.3d 1159 (N.Y. App. Div. 2005), cited by Feinberg, is readily

distinguishable. In Vacca, the court upheld a jury verdict awarding damages against a defendant
whose retaining wall "encroache[d] upon plaintiffs' property and threatens to collapse thereon."
Id. at 1160. As Feinberg acknowledges that "no disturbances have yet occurred since the June 13,

2015 store opening," Pl.'s Mem. at 3, his attempt to analogize the operation of Apple's Store to a
collapsing wall is unavailing. His private nuisance claim is dismissed.

B.

Public Nuisance Claim

Feinberg's public nuisance claim is also without merit. "To prevail on a public nuisance
claim under New York law, a plaintiff must show that the defendant's conduct amounts to a
substantial interference with the exercise of a common right of the public, thereby endangering or
injuring the property, health, safety or comfort of a considerable number of persons." In re Methyl
Tertiary Butyl Ether (MTBE) Products Liab. Litig., 725 F.3d 65, 121 (2d Cir. 2013) (internal

quotations and citation omitted). "A public nuisance is actionable by a private person only if it is
shown that the person suffered special injury beyond that suffered by the community at large. This
principle recognizes the necessity of guarding against the multiplicity oflawsuits that would follow
if everyone were permitted to seek redress for a wrong common to the public." 532 Madison Ave.
Gourmet Foods, Inc. v. Finlandia Ctr., Inc., 750N.E.2d 1097, 1104 (N.Y. 2001) (internal citations

omitted).
Apple argues that Feinberg does not allege any injury beyond that purportedly suffered by
the community at large.

The Court agrees.

Increased risk of fire, crowds, and traffic are

quintessentially issues that affect the public. See Wheeler v. Lebanon Valley Auto Racing Corp.,
755 N.Y.S.2d 763, 765 (N.Y. App. Div. 2003) (dismissing a public nuisance claim because "all

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persons in the affected community would be 'similarly impacted' by exposure to 'unacceptable'
noise levels during the Speedway's activities").
In support of his argument to the contrary, Feinberg urges the Court to follow Leo v. Gen.
Elec. Co., 538 N.Y.S.2d 84 (N.Y. App. Div. 1989), in which commercial fishermen were found to

state a claim for public nuisance based on the defendant's pollution of the Hudson River with
toxins. Id. at 845-46. But unlike here, "[i]n Leo ... [p ]laintiffs were able to establish that their
injuries were special and different in kind, not merely in degree: a loss of livelihood was not
suffered by every person who fished the Hudson." 532 Madison, 750 N.E.2d at 1105. Feinberg
does not allege that he has or will suffer a loss of livelihood or, indeed, any other harm different
from harm that may be experienced by his entire neighborhood.
Because Feinberg's alleged injury is "common to an entire community" and he would
suffer if at all "only in a greater degree than others, it is not a different kind of harm and [he] cannot

Id. (internal quotation and citation omitted).

recover for the invasion of the public right."

Feinberg's public nuisance claim is thus dismissed.

C.

Fire Code Violations Claim

Finally, Feinberg attempts to bring a claim against Apple for violations of the New York
City Fire Code, relying on Tim Collins' affidavit. 1 Feinberg cites no case, however, in support of
the proposition that a private right of action is available to enforce the Fire Code against a private
party. The sole case on which Feinberg docs rely, Altschu! v. Ludwig, 111 N.E. 216 (N.Y. 1916),
is inapposite.

In Altschul, the court allowed suit against a government employee-"the

1 Although Tim Collins' affidavit and supporting documents were not attached to the SAC, Feinberg argues
that they should be considered by the Court in evaluating Apple's motion to dismiss. See Pl.'s Mem. at 9 ("Collins'
letter reports cannot and should not be disregarded the context of the FRCP Rule 12(b)(6) motion."). The Court will
assume, without deciding, that these documents are properly before the Court because they are incorporated into the
SAC's fire safety allegations. See SAC iii! 53-67.

9

superintendent of buildings of the borough of Manhattan''-to enjoin him from approving plans
that ran afoul of then-exiting building code violations. Id. 2016-17. Feinberg, by contrast, does
not name any government entities or officials as defendants to this suit, attempting instead to
singlehandedly enforce the Fire Code against Apple. This he cannot do, as New York's Fire Code
provides that "[t]he fire commissioner shall be responsible for the administration and enforcement
of the fire code.'' N.Y.C. Admin. Code§ 29-103; accordN.Y.C. Admin. Code§ 29-104.1 ("The
rfire] commissioner shall have the authority to render interpretations of this code and to adopt

rules, policies, and procedures in order to clarify and implement its provisions."). The claim is
thus dismissed.

III.

Leave to Amend
Finally, Apple urges the Court to deny Feinberg any opportunity to amend the SAC.

Whether to grant or deny leave to amend is committed to the "sound discretion of the district
court," and leave may be denied when amendment would prove futile.

McCarthy v. Dun &

Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007). "Granting leave to amend is futile ifit appears
that plaintiff cannot address the deficiencies identified by the court and allege facts sufficient to
support the claim." Panther Partners Inc. v. Ikanos Commc'ns, Inc., 347 F. App'x 617, 622 (2d
Cir. 2009).
Feinberg, who is represented by counsel, has already had two opportunities to amend his
complaint, once with the benefit of Apple's motion to dismiss. Nonetheless, the SAC neither
sufficiently pleads standing nor states a claim for which relief can be granted. Because "[t]he
problem with [Feinberg's] causes of action is substantive; better pleading will not cure it.
Repleading would thus be futile." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).

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CONCLUSION
For the foregoing reasons, the Court concludes that Feinberg lacks standing to bring this
action against Apple and that, in any event, his SAC fails to state a claim.

Because further

amendment would be futile, Apple's motion to dismiss the SAC is granted with prejudice. The
Clerk of Court is respectfully directed to enter judgment in favor or Apple and close the case.

Dated:

August 10, 2016
New York, New York
rams
Ro n·
Umted States District Judge

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