Opinion
20 Civ. 9296 (NSR) (AEK)
09-09-2022
CLEAR CHANNEL OUTDOOR, LLC, Plaintiff, v. CITY OF NEW ROCHELLE, et al., Defendants.
ANDREW E. KRAUSE United States Magistrate Judge
TO: THE HONORABLE NELSON S. ROMAN, U.S.D.J.
Plaintiff Clear Channel Outdoor, LLC (“Clear Channel”) brings this action against Defendants the City of New Rochelle (the “City”); Luiz Aragon, in his official capacity as Commissioner of Development; and Paul Vacca, in his official capacity as Building Official (collectively, the “Defendants”), asserting various claims related to the New Rochelle City Code and a September 2020 order requiring that Clear Channel remove several billboards from the City of New Rochelle. ECF No. 1 (“Compl.”) ¶ 94. Currently before the Court is Clear Channel's motion for partial summary judgment. ECF Nos. 97 (Notice of Motion) and 98 (Memorandum of Law). For the reasons that follow, I respectfully recommend that Clear Channel's motion be DENIED solely because Defendants have raised triable issues of fact with respect to their affirmative defense of laches.
Citations in this Report and Recommendation to “Pl.'s Mot.” are to Clear Channel's memorandum of law in support of its motion for partial summary judgment (ECF No. 98).
I. BACKGROUND
A. Factual Background
The following facts are undisputed unless otherwise noted and are taken from Plaintiff's Local Civil Rule 56.1 Statement of Undisputed Material Facts, ECF No. 99 (“Pl.'s 56.1 Statement”), Defendants' Response to Plaintiff's Rule 56.1 Statement of Undisputed Material Facts, ECF No. 115-13 at 1-10 (“Defs.' Resp. to Pl.'s Rule 56.1 Statement”), Defendants' Statement of Additional Undisputed Material Facts, ECF No. 115-13 at 11-16 (“Defs.' 56.1 Statement”), Plaintiff's Response to Defendants' Rule 56.1 Statement, ECF No. 123 (“Pl.'s Resp. to Defs.' 56.1 Statement”), and the exhibits submitted in connection with Plaintiff's motion and Defendants' opposition.
1. The 1998 Litigation and Settlement
On July 26, 1996, the City amended Chapter 270 of the New Rochelle City Code, which governs signs, to require the removal of all “off-premise” billboards located anywhere within the City. ECF No. 100 (“Hay Decl.”) Ex. 1. On June 2, 1998, a group of outdoor advertising companies, including Clear Channel's predecessor-in-interest, Universal Outdoor, Inc., filed an action in this District against the City and City officials challenging the constitutionality of the 1996 law. Pl.'s 56.1 Statement ¶ 2; see Hay Decl. Ex. 2. The parties resolved the lawsuit by entering into a stipulation of settlement, which was approved by the court and entered on the docket on October 16, 2000. Pl.'s 56.1 Statement ¶ 3; see Hay Decl. Ex. 3 (the “Stipulation”).
A billboard is considered “off-premise” when it “advertises products or services that are not sold, produced, manufactured or furnished on the property where the sign is located.” Pl.'s Mot. at 4 n.2 (quoting Out of Home Advert. Ass'n of Am., OOH Glossary of Terms, https://bit.ly/3yMtuY1 (last visited Sept. 9, 2022)).
The Court retained jurisdiction to enforce the Stipulation and to award any related relief. Pl.'s 56.1 Statement ¶ 5; Stipulation ¶ 17.
The Stipulation defines various categories of billboards, with substantial differences among the categories in terms of the future maintenance or removal of the billboards. See, e.g., Stipulation ¶¶ 1(h), 1(k), 1(1), 1(m), 1(p), 5-7, 10. The Stipulation defines a specific set of billboards in existence as of the entry date of the Stipulation as “Existing Billboards”:
“Existing Billboard” shall mean a Billboard owned by a Plaintiff as listed on the certified Billboard inventory annexed hereto as Exhibit A, and made a part hereof. Such Billboard inventory specifies, as to each Billboard, the particular Plaintiff which owns that Billboard, and Plaintiffs hereby represent to Defendants that each such specification is correct as of the date hereof.Stipulation ¶ 1(h).
The defined terms of “Plaintiffs” and “Defendants” as used in the Stipulation are not the same, and do not refer to the same parties, as the defined terms in this Report and Recommendation.
In addition, the Stipulation contemplates that certain plaintiffs in the 1998 action would be able to construct up to nine new billboards along the Interstate 95 (“I-95”) corridor in New Rochelle, provided that those plaintiffs received the necessary permits and approvals from the relevant agencies and instrumentalities of the State of New York and of the United States. Id. ¶ 4. These potential new billboards, along with the Existing Billboards and certain other billboards, are defined in the Stipulation as “Remaining Billboards”:
The defendants in the 1998 action, including the City, agreed to “exercise their best efforts in good faith in support” of the plaintiffs' applications for the new billboards, and to “actively and diligently cooperate” with the plaintiffs “in seeking such permits and approvals” from the relevant agencies. Stipulation ¶ 4.
“Remaining Billboards” shall mean the Existing Billboards, any new Billboards permitted to be erected in the I-95 Corridor pursuant
to this Stipulation, and such of the Contingent Billboards as are permitted to remain pursuant to this Stipulation.Id. ¶ 1(p).
The term “Contingent Billboards” is defined separately in the Stipulation, see Stipulation ¶ 1(e), but no party suggests that the I-95 Billboards at issue in this motion, see infra Section I.A.3, are “Contingent Billboards” within the meaning of the Stipulation, and as such that term is not relevant to the consideration of this motion.
A central component of the Stipulation is the paragraph labeled “Immunity of Remaining Billboards,” which addressed the future treatment of those structures that fall within the definition of Remaining Billboards. Stipulation ¶ 10. The “immunity provision” provides that:
Plaintiffs shall, from and after the Entry Date, be permitted to retain and continue the use of all Remaining Billboards, as defined by this Stipulation, irrespective of any provision in or amendment to [Chapter 270 of the City Code] or any other code, rule, or regulation of the City requiring the removal of such Billboards, either immediately or with the passage of time, other than a provision or amendment which provides for just compensation pursuant to the New York Eminent Domain Procedure Law, as from time to time in effect, for any Billboard removed; ....The immunity provided Remaining Billboards by the terms of this Stipulation shall, in all events, expire on December 31, 2020, at which time all Billboards covered by this Stipulation shall become subject to all City codes, rules and regulations then in effect. If, at any time after December 31, 2020 a City code, rule or regulation would require the removal of one or more of the Remaining Billboards without the payment of just compensation, nothing, including without limitation the dismissal of claims pursuant to this Stipulation, this Stipulation, the entry of this Stipulation, or any applicable statute of limitations, shall prevent the owner of said Remaining Billboard or Billboards from challenging such City code, rule or regulation.Id.
2. The Amended Billboard Legislation
On March 20, 2001, the City again amended Chapter 270 of the City Code. Pl.'s 56.1 Statement ¶ 6. Of particular relevance for this motion, the March 2001 amendment required that certain billboards “in the same location and with the same sign area and height of sign which existed on March 20, 2001 without any enlargement at any time thereafter permitted” must be removed by no later than December 31, 2020. Id.; New Rochelle Code § 270-16 (the “Billboard Ordinance”).
In full, the Billboard Ordinance reads:
A. Legally existing billboards. A legally existing billboard, solely in the same location and with the same sign area and height of sign which existed on March 20, 2001, without any enlargement at any time thereafter permitted, may remain in existence until and shall be removed on or before the earlier to occur of the following events:
1) Discontinuance of its use for more than a continuous period of 180 days. “Discontinuance of use” shall be defined as whenever the face of an existing billboard shall no longer contain text or graphics (or a combination of the two) bearing a message. The display of text or graphics conveying merely information relating to the availability of the existing billboard or the place or manner in which the owner or lessee of the existing billboard (or his or her representative) may be contacted for the purpose of placing a message on the face thereof shall not be deemed “use” of such existing billboard; and
2) December 31, 2020.
After the Billboard Ordinance went into effect, the City sponsored an amendment to the New York State Public Authorities Law to authorize the construction of up to six new billboards in New Rochelle along the I-95 corridor. Pl.'s 56.1 Statement ¶ 9; see also 2002 N.Y. Sess. Laws 625, § 1(d) (amending N.Y. Pub. Auth. Law § 361-a). That state legislation went into effect on October 2, 2002. 2002 N.Y. Sess. Laws 625, § 1.
3. Clear Channel's Billboards
After the Stipulation was entered in 2000, Clear Channel acquired Universal Outdoor, Inc.'s rights under the Stipulation. Pl.'s 56.1 Statement ¶ 4. As envisioned in the Stipulation, and with the support and authorization of the City, Clear Channel built four new billboards along the I-95 corridor in New Rochelle between 2003 and 2005, these billboards are located at 78 Crescent Avenue, 81 Rockdale Avenue, 30 Grove Avenue, and 21 Cottage Place. Id. ¶¶ 14-15, 17-20, 22-24, 26, 32-33, 35-38. Additionally, after March 20, 2001, Clear Channel enlarged a billboard that was already erected at 4 Pleasant Street, expanding the sign area of the billboard by 960 square feet. Id. ¶¶ 27-29, 31. Clear Channel owns each of these five billboards (collectively, the “I-95 Billboards”) and rents the land upon which they stand from landowners under long-term, renewable leases. Id. ¶ 13.
In their papers, the parties discuss an apparent disagreement related to the billboard at 21 Cottage Place. Compare Defs.' Opp. at 11 n.2 with Pl.'s Mot. at 12. Defendants have conceded “for the purpose of this motion,” however, that the “billboard at 21 Cottage Place was built after March 20, 2001.” Defs.' Resp. to Pl.'s Rule 56.1 Statement ¶ 32. Accordingly, the Court does not treat this as a fact in dispute.
4. The Request for Proposals
In 2015, the New York State Public Authorities Law was further amended at the City's request to authorize a total of nine billboard structures along the I-95 corridor in New Rochelle. Id. ¶ 11; see also 2015 N.Y. Sess. Laws 489, § 1(4)(d) (amending N.Y. Pub. Auth. Law § 361-a).
In 2015 or 2016, the City issued a Request for Proposals (“RFP”) seeking an advertising media firm “to develop, operate and maintain a City-Wide Advertising Program” which would involve “the development of a variety of advertising venues . . ., as well as billboard locations to be determined on the I-95 Corridor within the City limits.” ECF No. 115-1 (“Chafizadeh Decl.”) Ex. D (RFP) at 3. Referring to the 2015 amendment to the New York State Public Authorities Law, the RFP specified that the State “ha[d] recently passed legislation permitting the development of up to nine (9) digital billboards on the I-95 Corridor located within the City limits.” Id. at 13. The RFP further noted that “[c]urrently there are 12 billboard faces located on the Corridor,” but that “[u]nder the current City ordinance all billboards must be removed by 2020.” Id. The winner of the RFP would be able to “develop three (3) billboard faces immediately on the Corridor and six (6) billboard faces to become operational on or after January 1, 2021.” Id. Clear Channel submitted a bid in response to the RFP, but the City selected one of Clear Channel's competitors, Outfront Media (“Outfront”), as the RFP winner. Defs.' 56.1 Statement ¶¶ 16, 19.
The parties dispute the date of the RFP. See Defs.' 56.1 Statement ¶ 12 (“In 2015, the City issued RFP 5127 ....”); Pl.'s Resp. to Defs.' 56.1 Statement ¶ 12 (“In fact, the RFP was issued on June 28, 2016.”). The Court notes that the version of the RFP that is included as Exhibit D to the Chafizadeh Declaration-and which is marked on the cover page as having been “[a]mended for correction to dates”-is dated July 5, 2016. The exact date the RFP was issued is not material to the Court's determination of this motion.
5. The 2020 Removal Order
In September 2020, New Rochelle ordered Clear Channel to remove all of its billboards within the City, including the I-95 Billboards, pursuant to the Billboard Ordinance (the “2020 Removal Order”). Pl.'s 56.1 Statement ¶ 39. On September 22, 2020, the City amended the Billboard Ordinance to impose daily (and escalating) fines on any billboard owner and/or landlord that failed to remove a billboard after receiving notice from a specified City official. Pl.'s 56.1 Statement ¶ 43; Hay Decl. Ex. 5; Chafizadeh Decl. Ex. C at 15-16 (New Rochelle Code § 270-16(B)(2)-(3)). These daily fines can amount to up to $10,000 per billboard and $10,000 per structure. Pl.'s 56.1 Statement ¶ 44.
B. Procedural History
Clear Channel commenced this action by filing the Complaint on November 5, 2020, alleging federal and state claims arising out of the Billboard Ordinance and 2020 Removal Order including breach of contract, tortious interference with business relations, and violations of the U.S. Constitution and New York State takings procedures. Compl. ¶¶ 103-65, 173-93. Additionally, in Count IX, Clear Channel claims that the Billboard Ordinance does not apply to the I-95 Billboards. Id. ¶¶ 166-72. Concurrently with the filing of the Complaint, Clear Channel moved for a preliminary injunction, seeking an order enjoining Defendants from removing or requiring the removal of the I-95 Billboards and compelling Defendants to comply with the Stipulation. ECF No. 12.
Vector Media, LLC (“Vector”) filed a related complaint on January 12, 2021, asserting various state and federal claims against Defendants, including claims analogous to those brought by Clear Channel. See Complaint, Vector Media, LLC v. City of New Rochelle, et al., No. 21-cv-266 (NSR) (AEK) (S.D.N.Y. Jan. 12, 2021), ECF No. 1. Like Clear Channel, Vector is an outdoor advertising company that is seeking to enjoin Defendants from ordering the removal of a billboard erected on the I-95 corridor. Id. at 3, 18. On May 13, 2021, the undersigned so-ordered a stipulation signed by counsel for Vector, Clear Channel, and Defendants, consolidating the lawsuits filed by Clear Channel and Vector for all purposes pursuant to Rule 42(a)(2) of the Federal Rules of Civil Procedure. ECF No. 60. In accordance with this stipulation, the action filed by Clear Channel was designated as the lead case with the action brought by Vector designated as the related case. Id.
On September 29, 2021, while Clear Channel's motion for a preliminary injunction was pending, Your Honor memo-endorsed a letter submitted by the parties advising that Defendants would not require the removal of any billboard owned by Clear Channel or Vector, impose fines for the non-removal of any Clear Channel or Vector billboard, or otherwise interfere with Clear Channel's or Vector's use of their billboards during the pendency of this litigation. ECF No. 71.
C. The Instant Motion
On November 30, 2021, Clear Channel requested a pre-motion conference with Your Honor to discuss its intention “to seek partial summary judgment on Count IX of the Complaint.” ECF No. 82. By order dated December 3, 2021, Your Honor amended the order of reference in this case to include a reference for a dispositive motion, i.e., Plaintiff's contemplated motion for partial summary judgment. ECF No. 91.
Clear Channel filed this motion for partial summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on December 27, 2021. Clear Channel seeks a declaratory judgment that the Billboard Ordinance does not apply to the I-95 Billboards, as well as a permanent injunction against the City's application of the Billboard Ordinance to the I-95 Billboards. Pl.'s Mot. at 18-19; see ECF Nos. 97, 101. Vector joined Clear Channel's motion on December 29, 2021, asserting in a succinct two-page submission that its claims are based on the same arguments set forth by Clear Channel in its motion. See Joinder, Vector Media, No. 21-cv-266 (NSR) (AEK) (S.D.N.Y. Dec. 29, 2021), ECF No. 27. Defendants filed an opposition to Clear Channel's motion on February 2, 2022, ECF No. 115 (“Defs.' Opp.”), and Clear Channel submitted a reply on February 16, 2022, ECF No. 120 (“Pl.'s Reply”).
Vector did not submit its own statement pursuant to Local Civil Rule 56.1 or any response to the Local Civil Rule 56.1 statements submitted by either Clear Channel or Defendants.
Though they have not cross-moved for summary judgment as to Count IX of the Complaint, Defendants have requested their own relief in the form of an order “holding that the I-95 Billboards . . . are subject to removal.” Defs.' Opp. at 1. For the reasons set forth below, such relief is not warranted.
At the time the motion for partial summary judgment was filed, the parties were engaged in fact discovery; documents and written discovery responses had been exchanged, but no depositions had taken place. Fact discovery in this matter is now complete, see ECF Nos. 153, 160-61 (expert discovery currently scheduled to conclude September 30, 2022), but because Clear Channel represented that this motion for partial summary judgment could be decided without a complete discovery record, see ECF Nos. 82, 93, the Court has not permitted the parties to file supplemental briefing based on additional evidence that has come to light while the motion has been pending.
The Court also has not considered the arguments offered in the parties' unauthorized sur-reply letter submissions filed at ECF Nos. 146 and 148.
II. DISCUSSION
A. Standard for Summary Judgment
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment should be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 320-23 (1986). A dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether a genuine issue of material fact exists, a court should “constru[e] the evidence in the light most favorable to the nonmoving party and draw[] all reasonable inferences in its favor.” Mount Vernon Fire Ins. Co. v. Belize N.Y., Inc., 277 F.3d 232, 236 (2d Cir. 2002); Farias v. Instructional Sys., Inc., 259 F.3d 91, 97 (2d Cir. 2001); Quinn v. Green Tree Credit Corp., 159 F.3d 759, 764 (2d Cir. 1998); see also Anderson, 477 U.S. at 261 n.2. Thus, “[o]nly when no reasonable trier of fact could find in favor of the nonmoving party should summary judgment be granted.” Cruden v. Bank of N.Y., 957 F.2d 961, 975 (2d Cir. 1992) (quoting H.L. Hayden Co. v. Siemens Med. Sys. Inc., 879 F.2d 1005, 1011 (2d Cir. 1989)).
“In a contract dispute, a motion for summary judgment may be granted if ‘the contractual language on which the moving party's case rests is found to be wholly unambiguous and to convey a definite meaning.'” Bank of N.Y. Trust, N.A. v. Franklin Advisors, Inc., 674 F.Supp.2d 458, 464 (S.D.N.Y. 2009) (quoting Topps Co. v. Cadbury Stani S.A.I.C., 526 F.3d 63, 68 (2d Cir. 2008)). “To the extent the moving party's case hinges on ambiguous contract language, summary judgment may be granted only if . . . there is no extrinsic evidence that would support a resolution of the ambiguities in favor of the nonmoving party's case.” Id.
Similarly, “[l]egislative history and statutory interpretation are questions of law appropriately decided on a motion for summary judgment.” Purdy v. Town of Greenburgh, 248 F.Supp.2d 266, 268 (S.D.N.Y. 2003); see also Introna v. Allstate Ins. Co., 850 F.Supp. 161, 165 (E.D.N.Y. 1993).
B. Analysis
The fundamental question presented in this motion is whether the five I-95 Billboards are subject to the requirement in the Billboard Ordinance that specifies that “any legally existing billboard, solely in the same location and with the same sign area and height of sign which existed on March 20, 2001, without any enlargement at any time thereafter permitted . . . shall be removed on or before . . . December 31, 2020.” See New Rochelle Code § 270-16(A).
For purposes of this motion, there is no dispute that four of the I-95 Billboards were constructed between 2003 and 2005, and that the fifth was enlarged at some point after March 20, 2001. See Pl.'s 56.1 Statement ¶¶ 14-15, 17-20, 22-24, 26, 32-33, 35-38. Clear Channel therefore maintains that the Billboard Ordinance cannot be understood to mandate the removal of these later-constructed or expanded billboards by the December 31, 2020 deadline. Defendants contend, however, that a proper reading of the Stipulation and the Billboard Ordinance does require the removal of the I-95 Billboards by December 31, 2020, and that this understanding is underscored by certain extrinsic evidence and Clear Channel's conduct in recent years as the December 31, 2020 deadline approached.
Evaluation of this matter requires examination of the Stipulation using principles of contract interpretation; consideration of the Billboard Ordinance itself; and assessment of the various additional defenses offered by Defendants in opposition to the motion.
1. Interpretation of the Language of the Stipulation
The Court begins by reviewing what restrictions, if any, were placed on the I-95 Billboards in the Stipulation. A stipulation between parties to resolve a lawsuit is a type of contract, and any disputes regarding the meaning of provisions in a stipulation are resolved using the standard tools employed by courts for contract interpretation. McCoy v. Feinman, 99 N.Y.2d 295, 302 (2002) (stipulations are “subject to settled principles of contractual interpretation”).
Under New York law, “the initial question for the court on a motion for summary judgment with respect to a contract claim is whether the contract is unambiguous with respect to the question disputed by the parties.” Law Debenture Tr. Co. of N.Y. v. Maverick Tube Corp., 595 F.3d 458, 465 (2d Cir. 2010) (quotation marks omitted). “[W]hether a written contract is ambiguous is a question of law for the court”; and “[i]f [a] contract is unambiguous, its meaning is likewise a question of law for the court to decide.” JA Apparel Corp. v. Abboud, 568 F.3d 390, 396-97 (2d Cir. 2009). “In interpreting an unambiguous contract, the court is to consider its particular words not in isolation but in the light of the obligation as a whole and the intention of the parties as manifested thereby, but the court is not to consider any extrinsic evidence as to the parties' intentions.” Id. (cleaned up). “The language of a contract is unambiguous when it has ‘a definite and precise meaning, unattended by danger of misconception in the purport of the [contract] itself, and concerning which there is no reasonable basis for a difference of opinion.'” S.W. v. N.Y.C. Dep't of Educ., 646 F.Supp.2d 346, 357 (S.D.N.Y. 2009) (quoting Revson v. Cinque & Cinque, P.C., 221 F.3d 59, 66 (2d Cir. 2000)). In contrast, a contract may be ambiguous where “a reasonably intelligent person viewing the contract objectively could interpret the language in more than one way.” Topps Co., 526 F.3d at 68. “Ambiguity is determined by looking within the four corners of the document, not to outside sources.” Novartis Pharma AG v. Incyte Corp., 520 F.Supp.3d 514, 524 (S.D.N.Y. 2021) (quoting JA Apparel, 568 F.3d at 396). A court “should not find [a] contract ambiguous where the interpretation urged by one party would ‘strain [ ] the contract language beyond its reasonable and ordinary meaning.'” L. Debenture Trust Co. of N.E., 595 F.3d at 467 (quoting Bethlehem Steel Co. v. Turner Constr. Co., 2 N.Y.2d 456, 459 (1957)).
The parties agree that New York law governs any dispute related to the interpretation of the Stipulation. Pl.'s Mot. at 14; Defs.' Opp. at 13.
Both parties insist that the language of the Stipulation is unambiguous, Pl.'s Mot. at 15, Defs.' Opp. at 8, 11-yet they offer significantly different interpretations of how that unambiguous language should be understood. According to Defendants, as part of the Stipulation, “the parties indisputably agreed . . . that the I-95 Billboards (regardless of when erected) would be treated as legally existing as of the entry of the Stipulation.” Defs.' Opp. at 9. Defendants reference two sections of the Stipulation in support of this position: the definition of “Remaining Billboards,” and the provision concerning “Erection of the I-95 Billboards” (“[o]nce erected, such Billboards shall, for purposes of this Stipulation, be deemed Remaining Billboards”). Id. (citing Stipulation ¶¶ 1(p), 5). In Defendants' view, because the parties “proactively denominat[ed] all later-erected billboards as ‘Remaining Billboards,'” those “later-erected” Billboards were be treated as existing as of the date of the Stipulation. Id. Thus, according to Defendants, “unambiguously[,] [ ] all ‘Remaining Billboards' came into effect as of the date of the Stipulation's entry.” Id. at 10. In the alternative, Defendants contend that if the Court finds the Stipulation is silent as to when the I-95 Billboards came into effect, “the Court may-and should-fill any gap to effectuate the intent of the parties.” Id. at 13.
Clear Channel describes Defendants' interpretation as a “legal fiction,” Pl.'s Mot. at 1, and argues that “‘Remaining Billboards' is not defined by reference to the 2000 settlement date”; rather, only “Existing Billboard[s]” are defined by reference to the date of the Stipulation. Pl.'s Mot. at 17 (citing Stipulation ¶ 1(h)). And the I-95 Billboards-which were constructed after the Stipulation was entered on October 16, 2000-“are expressly not treated as ‘Existing Billboard[s],' because they neither existed nor were deemed to have existed as of the date of the Stipulation.” Id. (alteration in original). Plaintiff goes on to reason that “[i]f [the I-95 Billboards] were meant to be treated identical to Existing Billboards, separately defining ‘Remaining Billboards' would have been superfluous.” Id.
Defendants argue that Clear Channel's interpretation of the Stipulation “makes no sense” because it would entitle Clear Channel “to maintain its I-95 Billboards in perpetuity.” Defs.' Opp. at 14 n.4 (emphasis in original). But Clear Channel has not asserted that the Stipulation grants the positive right to maintain its billboards indefinitely; rather, Clear Channel concedes that the City “may pass legislation requiring the removal of any billboards,” while also maintaining that the City has not enacted a law that is applicable to the I-95 Billboards. Pl.'s Mot. at 2 (emphasis in original).
The Court finds the Stipulation is unambiguous, and that there is no basis to conclude that the I-95 Billboards were meant to be treated as having been in existence as of the date of entry of the Stipulation in 2000. Indeed, Defendants' proffered interpretation of the Stipulation strains the plain language of the document. See Seiden Assocs., Inc. v. ANC Holdings, Inc., 959 F.2d 425, 428 (2d Cir. 1992) (“The language of a contract is not made ambiguous simply because the parties urge different interpretations. Nor does ambiguity exist where one party's view strains the contract language beyond its reasonable and ordinary meaning.” (cleaned up)). The Stipulation provides that the I-95 Billboards-all of which were constructed or enlarged after the Stipulation was entered-are one of three distinct categories of billboards that fall within the definition of “Remaining Billboards,” and the parties do not dispute this. See Stipulation ¶ 1(p) (definition of Remaining Billboards includes “Existing Billboards,” “any new Billboards permitted to be erected in the I-95 Corridor pursuant to this Stipulation,” and certain of the “Contingent Billboards”); Pl.'s Mot. at 17 (explaining the I-95 Billboards “are [ ] defined as being “Remaining Billboards”); Defs.' Opp. at 9 (“the Stipulation defines all billboards authorized under its terms, specifically including the I-95 Billboards, as ‘Remaining Billboards'” (emphasis omitted)). The term “Existing Billboards”-a defined set of billboards in existence at the time the Stipulation was entered, and specifically listed on a certified billboard inventory attached to the Stipulation-did not encompass newly-constructed or enlarged I-95 Billboards. See Stipulation ¶¶ 1(h), 9 (defining Existing Billboards). The parties to the Stipulation indisputably agreed to treat all of the Remaining Billboards-including the I-95 Billboards-the same as for purposes of, inter alia, immunity, and repair and maintenance obligations. See id. ¶¶ 10, 13.
If the parties had intended for the I-95 Billboards that were contemplated in the Stipulation to be “deemed” to have existed at the time the Stipulation, those prospective billboards should have been included in the definition of Existing Billboards-a set of structures that did, in fact, exist as of the date the Stipulation was entered-rather than as a standalone category of structures within the broader grouping of Remaining Billboards. Nothing in the definition of Remaining Billboards, or any other provision of the Stipulation, suggests that the I-95 Billboards were meant to have been “deemed” constructed or enlarged on any dates other than the dates they were actually constructed or enlarged. To the contrary, rather than “deeming” any new billboards erected as of the date of the Stipulation, the Stipulation states that the I-95 Billboards were only to be “deemed Remaining Billboards” for purposes of the Stipulation “[o]nce erected,” not as of the date the Stipulation was entered. Id. ¶ 5.
Despite this specific reference to the I-95 Billboards being deemed Remaining Billboards “once erected,” Defendants urge the Court to read the Stipulation as being silent as to when the I-95 Billboards should be considered to have existed. But even this would not provide a path to the interpretation that Defendants recommend. “Unless [contractual] silence creates an ambiguity or renders it unclear, [a] [c]ourt cannot rewrite the contract.” La Salle Bank Nat'l Ass'n v. CIBC Inc., No. 08-cv-8426 (WHP), 2011 WL 4943341, at *3 (S.D.N.Y. Oct. 17, 2011) (quotation marks omitted). Defendants have not identified any section of the Stipulation that even as much as implies that the I-95 Billboards should be deemed to have existed at any point other than when they were actually erected. The “immunity provision” of the Stipulation also does not compel this conclusion. While paragraph 10 of the Stipulation explains that the immunity of the Remaining Billboards from the application of relevant City Code provisions would expire on December 31, 2020, it says nothing about when the I-95 Billboards are deemed to have been erected, nor why-at the time of the Stipulation-that date would be of significance in relation to the conclusion of the immunity period.
In sum, the language of the Stipulation cannot be understood to require the I-95 Billboards to be treated as though they came into existence as of the date the Stipulation was entered.
2. Extrinsic Evidence
Defendants insist that the Court is “[r]equired” to consult extrinsic evidence “to [r]esolve [a]ny [a]mbiguities or [e]ven [p]erceived [a]mbiguities.” Defs.' Opp. at 15. But it is well established that when a contract is unambiguous, “the court is not to consider any extrinsic evidence as to the parties' intentions.” JA Apparel, 568 F.3d at 397; Seiden Assocs., 959 F.2d at 428 (“If the language [of the contract] unambiguously conveys the parties' intent, extrinsic evidence may not properly be received . . . .”); Metro. Life Ins. Co. v. RJR Nabisco, Inc., 906 F.2d 884, 889 (2d Cir. 1990) (“The parties' rights under an unambiguous contract should be fathomed from the terms expressed in the instrument itself rather than from extrinsic evidence as to terms that were not expressed or judicial views as to what terms might be preferable.”).
As discussed in Section II.B.1, the Court has determined that disputed provisions of the Stipulation are unambiguous-and indeed, even the parties have described the relevant provisions as unambiguous. Accordingly, it is not appropriate to consider extrinsic evidence to evaluate the meaning of the Stipulation. See JA Apparel, 568 F.3d at 397.
Even if it were proper to consider extrinsic evidence, the documents presented by Defendants would be of limited utility to the Court in interpreting the Stipulation. Defendants have submitted documents and communications related to the RFP and Clear Channel's response to the RFP, along with other Clear Channel communications dated between 2016 and 2020. But a “unilateral expression of one party's postcontractual subjective understanding of the terms of the agreement . . . is not probative as an aid to the interpretation of the contract.” Dreni v. PrinterOn Am. Corp., No. 18-cv-12017 (MKV), 2021 WL 4066635, at *14 (S.D.N.Y. Sept. 3, 2021) (alterations omitted) (quoting LaSalle Bank Nat'l Ass'n v. Nomura Asset Cap. Corp., 424 F.3d 195, 207 n.10 (2d Cir. 2005)). The communications submitted by Defendants-from at least 16 years after the Stipulation was entered, and between and among Clear Channel personnel who were not involved in the negotiation of the Stipulation, see Chafizadeh Decl. Exs. G-J- would not aid in the Court's understanding of any particular contract provisions. Such communications are not “probative of [the contracting party's] intent.” See Aircraft Servs. Resales LLC v. Oceanic Cap. Co., No. 09-cv-8129 (PKC), 2013 WL 4400453, at *5 (S.D.N.Y. Aug. 14, 2013).
The City apparently has submitted this extrinsic evidence to bolster its interpretations of both the Stipulation and the Billboard Ordinance. Defs.' Opp. at 15. But in support of its argument, the City only cites cases concerning contract interpretation, not statutory interpretation. See id. In any event, as explained below, “where, as here, the legislative language is clear, [a court] ha[s] no occasion to examine extrinsic evidence to discover legislative intent.” Makinen v. City of New York, 30 N.Y.3d 81, 85 (2017) (cleaned up); see infra Section II.B.3.
3. The Billboard Ordinance
The Court turns next to the issue of statutory interpretation. “In determining the reach of a particular statute, we begin, as we must, with the text.” Noble v. Career Educ. Corp., 375 Fed.Appx. 102, 103 (2d Cir. 2010). “Where words of a statute are free from ambiguity and express plainly, clearly and distinctly the legislative intent, resort may not be had to other means of interpretation.” N.Y. Stat. § 76.
Clear Channel argues that the Billboard Ordinance does not require the removal of the I-95 Billboards because the Billboard Ordinance, by its own terms, applies only to billboards that existed on March 20, 2001. Pl.'s Mot. at 14-18; New Rochelle Code § 270-16(A). Defendants, in contrast, assert that because the I-95 Billboards were “deemed” to legally exist as of the date the Stipulation was entered (October 16, 2000), they therefore legally “existed on March 20, 2001” and are governed by the Billboard Ordinance. Defs.' Opp. at 10-11.
Defendants assert that separate and apart from the Billboard Ordinance, New Rochelle Code § 270-4(E)(1) provides an independent basis requiring Clear Channel to remove the I-95 Billboards. Defs.' Opp. at 11. This argument is beyond the scope of this motion for partial summary judgment because Count IX of the Complaint-the only basis for relief invoked by Clear Channel here-is focused on the “Scope of the Billboard Ordinance, ” which is defined in the Complaint to mean § 270-16 of the Code. Compl. ¶¶ 68, 166-72 (emphasis added). That said, it is difficult to understand Defendants' argument as to § 270-4-that provision prohibits all billboards in the City, except for billboards that existed as of March 20, 2001 (i.e., the same universe of billboards addressed in the Billboard Ordinance) and billboards permitted to be proposed pursuant to the Stipulation, which would seem to encompass the I-95 Billboards within the carve-out to the billboard prohibition.
Having already determined that the Stipulation does not “deem” the I-95 Billboards to have existed as of the date the Stipulation was entered, the Court is left with the plain language of the Billboard Ordinance, which indicates that the Billboard Ordinance cannot be applied to the I-95 Billboards. The text of the Billboard Ordinance is clear-it specifically governs billboards “which existed on March 20, 2001 without any enlargement at any time thereafter permitted.” New Rochelle Code § 270-16(A). The Billboard Ordinance is silent as to what is to become of any billboards erected after March 20, 2001 or enlarged after that date. “Where a law expressly describes a particular act, thing or person to which it shall apply, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded.” Town of Aurora v. Vill. of E. Aurora, 32 N.Y.3d 366, 372-73 (2018) (cleaned up). Thus, the fact that the Billboard Ordinance makes no reference at all to the small universe of billboards that were constructed or enlarged after March 20, 2001 must be understood to mean that those billboards were purposely excluded from the scope of the Billboard Ordinance. At bottom there is no dispute that four out of five of the I-95 Billboards did not actually exist on March 20, 2001, and that the fifth I-95 Billboard was enlarged after March 20, 2001. See Pl.'s 56.1 Statement ¶¶ 12, 14-15, 17-20, 22-24, 26-29, 31-33, 35-38. Because these five billboards did not “exist[ ] on March 20, 2001 without any enlargement at any time thereafter,” the Billboard Ordinance does not apply to them.
Defendants' most compelling argument is the suggestion that the Billboard Ordinance must be read in conjunction with the Stipulation to form the understanding that the Billboard Ordinance was, in fact, meant to require the removal of the I-95 Billboards on or before December 31, 2020. The Billboard Ordinance sets December 31, 2020 as the latest date by which any billboard that existed on March 20, 2001 would have to be removed, see New Rochelle Code § 270-16(A)(2), and paragraph 10 of the Stipulation sets that same date- December 31, 2020-as the date when the “immunity provision” applicable to the “Remaining Billboards” (including the I-95 Billboards) expired, Stipulation ¶ 10. The fact that both the immunity provision of the Stipulation and the language of the Billboard Ordinance use the same critical date hints at a potential interrelationship between the two, as does the fact that the Billboard Ordinance was enacted approximately five months after the Stipulation was entered. And because, upon the expiration of the immunity provision, the “Remaining Billboards”- including the I-95 Billboards-became “subject to all City codes, rules and regulations then in effect,” Id., it is understandable that Defendants urge the Court to consider the Billboard Ordinance to be an attempt to regulate all categories of billboards addressed in the Stipulation, including the Remaining Billboards (and, therefore, the I-95 Billboards). But any logical or intuitive appeal that this argument may hold is fatally undermined by the actual language of the Billboard Ordinance itself. If the City had wanted the Billboard Ordinance to apply to billboards built after March 20, 2001, it should not have included language in the statute limiting the scope of the legislation to billboards that “existed on March 20, 2001.” To the extent the City wanted to make clear that any billboards contemplated by the Stipulation were meant to be included within the meaning of the Billboard Ordinance, it had the ability to draft the law to say just that. Indeed, § 270-4(E) of the Code-which was amended at the same time as the Billboard Ordinance-included language that specifically carved out billboards “as permitted pursuant to the court-ordered settlement in that matter entitled Universal Outdoor, Inc., et al v. City of New Rochelle et al.” from the City's generalized prohibition on billboards. In short, when the City wanted to make clear that a particular provision of the amended Code was to be applied in a particular way with respect to the billboards contemplated by the Stipulation, it said so directly. No such language was included in the Billboard Ordinance, which only reinforces the conclusion that the Billboard Ordinance was not designed to apply to the I-95 Billboards. See, e.g., Sosa v. Alvarez-Machain, 542 U.S. 692, 711 n.9 (2004) (“the usual rule [is] that when the legislature uses certain language in one part of the statute and different language in another, the court assumes different meanings were intended” (quotation marks omitted)); Rangolan v. Cnty. of Nassau, 96 N.Y.2d 42, 47 (2001) (where a legislature “uses different terms in various parts of a statute, courts may reasonably infer that different concepts are intended”).
For all the reasons set forth in Sections II.B.1, 2, and 3, this Court respectfully recommends a finding that the Billboard Ordinance does not apply to the I-95 Billboards.
4. Laches Defense
Defendants have offered the affirmative defense of laches in response to Count IX, and maintain that they have raised triable issues of fact with respect to this defense. See Defs.' Opp. at 21-23. “The doctrine of laches protects defendants against unreasonable, prejudicial delay in commencing suit.” Zuckerman v. Metro. Museum of Art, 928 F.3d 186, 193 (2d Cir. 2019) (cleaned up). “A party asserting a laches defense must show that the plaintiff has inexcusably slept on its rights so as to make a decree against the defendant unfair. Laches . . . requires a showing by the defendant that it has been prejudiced by the plaintiff's unreasonable delay in bringing the action.” Id. (quoting Merrill Lynch Inv. Managers v. Optibase, Ltd., 337 F.3d 125, 132 (2d Cir. 2003)). In short, “a party asserting the affirmative defense of laches . . . has the burden to demonstrate two independent elements: (1) unreasonable delay; and (2) prejudice.” Howard Univ. v. Borders, No. 20-cv-4716 (LJL), 2022 WL 602829, at *15 (S.D.N.Y. Mar. 1, 2022).
Defendants assert that Clear Channel “sat on its purported rights,” even after the City initiated the 2015/2016 RFP process that was premised in part on the understanding that Clear Channel would remove the I-95 Billboards by January 1, 2021. Defs.' Opp. at 22. According to Defendants, the City has been prejudiced in that it “expended significant time, effort, and money” in connection with the RFP process and “now has a contract with Outfront to take over the operations of billboards in the I-95 Corridor.” Defs.' Opp. at 3, 23.
Clear Channel maintains that: (1) the City waived the laches defense in the Stipulation; (2) laches is inapplicable as a matter of law because Clear Channel's claims sound exclusively in law, not equity; (3) the City does not provide any evidence that it was prejudiced by Clear Channel's position; and (4) the City's equitable claims are based on the false premise that the I-95 Billboards were the subjects of the RFP.
a. Clear Channel's Threshold Responses
As a threshold matter, the Court rejects Clear Channel's assertions that the City waived the laches defense in the Stipulation and that the laches defense cannot apply based on the relief sought in this motion. First, the notion that the City waived its ability to assert this defense is not consistent with Clear Channel's own course of conduct pursuant to the Stipulation or with the plain language of the Stipulation. The Stipulation provides:
If, at any time after December 31, 2020 a City code, rule or regulation would require the removal of one or more of the Remaining Billboards without payment of just compensation, nothing, including without limitation the dismissal of claims pursuant to this Stipulation, this Stipulation, the entry of this Stipulation, or any applicable statute of limitations, shall prevent the owner of said Remaining Billboard or Billboards from challenging such City code, rule or regulation.Stipulation ¶ 10. Focusing on the first clause of this provision, Clear Channel argues that under the Stipulation, it “agreed to dismiss its claims and not pursue litigation against New Rochelle during the immunity period.” Pl.'s Reply at 5. In essence, Clear Channel suggests that it should not be faulted for any purported delay in taking legal action because the terms of the Stipulation expressly prohibited such legal action prior to December 31, 2020. But this argument is belied by the filing of this very lawsuit, which was commenced on November 5, 2020, prior to the expiration of the immunity period. Clear Channel's actions in this matter indicate that it did not view itself as being precluded by the Stipulation from commencing a lawsuit prior to December 31, 2020. If it was possible to start an action on November 5, 2020, it follows that the Stipulation did not prevent Clear Channel from bringing suit earlier in the immunity period. The laches defense cannot be set aside on this basis.
Moreover, while the above-referenced language from the Stipulation appears to have been designed to provide Clear Channel with the assurance that it would be free to raise any challenge to a City code, rule or regulation that would require the removal of one or more of the Remaining Billboards without the payment of just compensation, it strains the plain language of the Stipulation to treat this provision as expressly prohibiting Defendants from raising all potentially valid defenses in response to such a lawsuit. A laches defense is not an assertion that a lawsuit could not be filed at all; rather, it is a claim that the suit should have been initiated at an earlier point in time so as not to prejudice the defendants. The assertion of a laches defense is consistent with the Stipulation because it did not “prevent” Clear Channel from seeking to enforce its rights-it is just a response to the manner in which Clear Channel has done so.
Accordingly, the Defendants did not waive the right to raise the affirmative defense of laches as part of the Stipulation.
Second, Clear Channel claims that the laches defense is inapplicable in connection with this motion “because Clear Channel's claims under the Stipulation and the Billboard Ordinance sound in law, not equity.” Pl.'s Reply at 6. “Laches is a defense only against claims in equity and not at law.” Liebowitz v. Elsevier Sci. Ltd., 927 F.Supp. 688, 704 (S.D.N.Y. 1996). Clear Channel's notice of motion and proposed order filed in connection with this motion for partial summary judgment make plain, however, that Clear Channel seeks relief in the form of two equitable, not legal, remedies. See ECF Nos. 97, 101. The request to permanently enjoin Defendants from enforcing the Billboard Ordinance as to the I-95 Billboards is based in equity. See, e.g., Nnebe v. Daus, Nos. 21-173-cv, 21-170-cv, 2022 WL 1220204, at *2 (2d Cir. Apr. 26, 2022) (“[t]he decision to grant or deny permanent injunctive relief is an act of equitable discretion by the district court”) (summary order); Medinol Ltd. v. Boston Sci. Corp., 346 F.Supp.2d 575, 609-10 (S.D.N.Y. 2004) (“[L]aches cannot bar [plaintiff's] claim for damages for breach of [contract], or for torts. However, laches may bar [plaintiff's] claim for injunctive and other equitable relief.”). Clear Channel's claim for a declaratory judgment here should likewise be understood to be based in equity. “Actions for declaratory judgments are neither legal nor equitable, and courts have therefore had to look to the kind of action that would have been brought had Congress not provided the declaratory judgment remedy” to determine their classification. Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 284 (1988). To make this determination, courts look at the type of claim that would have been brought “[w]ere it not for the availability of declaratory relief.” Am. Safety Equipment Corp. v. J.P. Maguire Co., 391 F.2d 821, 824 (2d Cir. 1968); see also Leviton Mfg. Co., Inc. v. Pass & Seymore, Inc., 425 F.Supp.3d 165, 168-69 (E.D.N.Y. 2019); Chevron Corp. v. Salazar, Nos. 11-cv-3718 (LAK), 11-cv-0691 (LAK), 2011 WL 3628843, at *6-7 (S.D.N.Y. Aug. 17, 2011). In the absence of any option for declaratory relief, Clear Channel's action with respect to Count IX would be solely an action for injunctive relief to enjoin Defendants from requiring Clear Channel to remove its billboards, which is an equitable remedy. Because Clear Channel seeks only equitable relief in this motion, Defendants are not barred from asserting their laches defense in response.
Clear Channel has provided no support for its assertion that its claims under the Stipulation and Billboard Ordinance “sound in law, not equity.” See Pl.'s Reply at 6.
b. Unreasonable Delay
Turning to the merits of the Defendants' laches defense, the focus of Defendants' assertion of laches is the expenditure of time and resources associated with the RFP process in 2015 and 2016-and with good reason. When the City issued the RFP, it signaled its intention to require the removal of the I-95 Billboards so that the RFP winner would have the ability to develop new billboards within the I-95 corridor while still adhering to the limitations on billboard structures in New York State law. See Chafizadeh Decl. Ex. D (RFP) at 13 (“[u]nder the current City ordinance all billboards [on the I-95 Corridor] must be removed by 2020”). Accordingly, Defendants contend that Clear Channel was on notice, at least since the issuance of the RFP, that the City's position was that the Stipulation and Billboard Ordinance required the removal of the I-95 Billboards by December 31, 2020. See Defs.' Opp. at 16-18. Indeed, Defendants posit that the City “could not have been clearer that the RFP and the subsequent contract it entered with Outfront were based on and required the removal of Clear Channel's I-95 Billboards as of December 31, 2020.” Id. at 27.
Clear Channel argues that the laches defense “rest[s] on [the] false premise” that the I-95 Billboards “were the subject of the RFP.” Pl.'s Reply at 7. According to Clear Channel, it was not necessary to conclude from the RFP that the City would seek removal of the I-95 Billboards-in Clear Channel's view because it owns its billboards, the right to operate those billboards could not simply be awarded to another company by unilateral decision of the City. Id. Moreover, Clear Channel insists that its decision to submit a bid in connection with the RFP did not signify any understanding that the I-95 Billboards would be subject to removal; rather, Clear Channel pursued the RFP because it offered the opportunity to operate “nine new digital billboards” compared with the six non-digital billboards Clear Channel already held the right to operate. Id. Yet there can be no dispute that under New York State law, Outfront cannot operate all nine billboards it is allowed under the RFP while Clear Channel continues to operate the I-95 Billboards. Pl.'s 56.1 Statement ¶ 11; see also 2015 N.Y. Sess. Laws 489, § 1(4)(d) (amending N.Y. Pub. Auth. Law § 361-a); Chafizadeh Decl. Ex. D (RFP) at 13.
Ultimately, Defendants have presented sufficient evidence to raise a question for the trier of fact as to whether Clear Channel unreasonably delayed in asserting claims for relief to prevent the enforcement of the Billboard Ordinance against the I-95 Billboards. At a minimum, a trier of fact could conclude that Clear Channel had reason to believe at the time the RFP was issued- years before Clear Channel filed suit here-that the City understood the Stipulation and the Billboard Ordinance to require the removal of the I-95 Billboards. A trier of fact could also conclude that Clear Channel submitted a bid in response to the RFP at least in part as a result of its understanding of the City's intentions with respect to the I-95 Billboards. Yet Clear Channel took no action at that time to assert its rights or prevent the City from acting in the manner that was foreshadowed by the RFP.
c. Prejudice
There is likewise a question of fact as to whether the City suffered prejudice as a result of Clear Channel's delay in bringing the claim at issue in this motion. Under New York law, “prejudice ensues when a defendant has changed [its] position in a way that would not have occurred if the plaintiff had not delayed.” Conopco, Inc. v. Campbell Soup Co., 95 F.3d 187, 192 (2d Cir. 1996) (quotation marks omitted); see also In re Linker, 23 A.D.3d 186, 189 (1st Dep't 2005) (“[p]rejudice may be demonstrated by a showing of injury, change of position, loss of evidence, or some other disadvantage resulting from the delay” (quotation marks omitted)).
According to Defendants, the City has been prejudiced by Clear Channel's delay because of the significant expenditure of time, effort, and money required for the RFP process, and its award of a contact to Outfront to operate the billboards in the I-95 corridor. Had Clear Channel sought the type of equitable relief it seeks in connection with this motion at or around the time the City was contemplating issuing the RFP, the City would have been able to avoid many of these burdens. Instead, the City issued the RFP, reviewed bids (including a bid from Clear Channel), selected Outfront as the winning bidder, and proceeded to enter into an agreement with Outfront to operate billboards along the I-95 corridor, all based on the expectation that the parties had a common understanding of what would become of the I-95 Billboards at the end of the immunity period on December 31, 2020. In Defendants' view, Clear Channel only presented its “newfound” interpretation of the Stipulation and the Billboard Ordinance at a much later date, see, e.g., Defs.' Opp. at 2, 6, 11, 22, long after the City had acted in reliance on what it had understood to be the parties' mutually held views.
Construing the evidence in the light most favorable to the non-moving parties, this Court concludes that Defendants have raised a triable issue of fact as to whether the City was prejudiced by Clear Channel's delay in seeking equitable relief with respect to the I-95 Billboards. Because this Court concludes that the City has presented sufficient evidence to raise triable issues of fact regarding the elements of the laches defense, this Court respectfully recommends that Clear Channel's motion for partial summary judgment be denied on this basis.
5. Defendants' Remaining Arguments
While the three additional arguments asserted by Defendants for denial of Clear Channel's motion for partial summary judgment need not necessarily be addressed in light of this Court's recommendation as to the laches defense, they are evaluated here so as to provide a comprehensive assessment of the points articulated in the motion papers. According to Defendants: (1) Clear Channel is barred by equitable estoppel from bringing the claim in Count IX of the Complaint, Defs.' Opp. at 22-23; (2) the motion should be denied or else held in abeyance until the parties complete discovery, Id. at 20-21; and (3) the motion should be denied for the “practical reason” that even if the New Rochelle City Code as written does not apply to the I-95 Billboards, the City could rewrite the Code to explicitly require their removal, Id. at 23. For the following reasons, this Court respectfully recommends that these arguments be rejected.
a. Equitable Estoppel
“Under New York law, equitable estoppel requires a showing of “(1) [a]n act constituting a concealment of facts or a false misrepresentation; (2) [a]n intention or expectation that such acts will be relied upon; (3) [a]ctual or constructive knowledge of the true facts by the wrongdoers; [and] (4) [r]eliance upon the misrepresentations which causes the innocent party to change its position to its substantial detriment.” Gen. Elec. Cap. Corp. v. Armadora, S.A., 37 F.3d 41, 45 (2d Cir. 1994). For the doctrine to be invoked, a party must have made “an actual misrepresentation or, if a fiduciary, [must have] concealed facts which [the party] was required to disclose ....” Koral v. Saunders, 36 F.4th 400, 409-10 (2d Cir. 2022) (quotation marks omitted). Equitable estoppel is an “extraordinary remedy” that should be “invoked sparingly and only under exceptional circumstances.” Twersky v. Yeshiva Univ., 993 F.Supp.2d 429, 442 (S.D.N.Y. 2014) (cleaned up), aff'd, 579 Fed.Appx. 7 (2d Cir. 2014).
Defendants do not adequately explain how Clear Channel's conduct entitles them to such relief. While Defendants generally assert that Clear Channel “internally agreed that it would have to remove the I-95 Billboards as of December 31, 2020,” “announced this same understanding to the City” by bidding on the RFP, and “never once challenged the City's RFP or its contract with Outfront” prior to bringing this action, Defs.' Opp. at 22, there is no indication of how Clear Channel's apparent understanding of its legal rights and obligations amounts to an “actual misrepresentation” that prevented Defendants from exercising their rights. Even to the extent any of these alleged actions by Clear Channel could be considered an actual misrepresentation, misrepresentations regarding legal opinions or interpretations do not serve as the basis for the application of equitable estoppel. MBIA Ins. Corp. v. Patriarch Partners VIII, LLC, 842 F.Supp.2d 682, 714 (S.D.N.Y. 2012) (equitable estoppel did not apply where alleged misrepresentation concerned the plaintiff's legal opinions, “not facts”); Coggins v. Cnty. Of Nassau, 615 F.Supp.2d 11, 23 n.4 (E.D.N.Y. 2009) (“If this issue is simply a dispute over the legal interpretation of the relevant state statutes, then equitable estoppel is inapplicable.”).
Defendants do not contend that there was a fiduciary relationship between Clear Channel and the City such that equitable estoppel could be invoked based on the alleged concealment of facts that Clear Channel was required to disclose.
b. Rule 56(d)
Defendants next assert that the Court should delay in rendering a decision pursuant to Rule 56(d) of the Federal Rules of Civil Procedure. Under Rule 56(d), if “a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order.” Fed.R.Civ.P. 56(d). The affidavit or declaration supplied by the nonmovant must include “the nature of the uncompleted discovery; how the facts sought are reasonably expected to create a genuine issue of material fact; what efforts the affiant has made to obtain those facts; and why those efforts were unsuccessful.” Whelehan v. Bank of Am. Pension Plan for Legacy Cos.-Fleet-Traditional Ben., 621 Fed.Appx. 70, 73 (2d Cir. 2015) (quotation marks omitted). The Second Circuit has further made clear that to delay resolution of a summary judgment motion on grounds that a party has been deprived of certain discovery materials, the party “must show that the material sought is germane to the defense, and that it is neither cumulative nor speculative, and a bare assertion that the evidence supporting a [party's] allegation is in the hands of the [opposing party] is insufficient.” Alphonse Hotel Corp. v. Tran, 828 F.3d 146, 151 (2d Cir. 2016) (quotation marks omitted).
In support of their opposition, Defendants have submitted the Chafizadeh Declaration, in which Defendants assert that given certain discovery “productions are still outstanding . . . it is possible that Clear Channel could produce more documents of relevance and importance to the equitable claims in this case” and that “the City could identify additional individuals with pertinent knowledge of the facts in this case.” Chafizadeh Decl. ¶ 21. More specifically, Defendants explain that as of the date the opposition was filed the parties had not taken any depositions, but that Defendants expected to depose Clear Channel on topics of “Clear Channel's sudden change in position regarding the removal of the I-95 Billboards” and “its decision to submit an RFP response to operate on I-95 beyond December 31, 2020 despite its newfound position that it does not need to remove the I-95 Billboards as of that date.” Id. ¶ 22. Defendants maintain that these deposition topics are “critical not only to the meaning and interpretation of the Stipulation and Code but also to the City's equitable defenses.” Id.
These representations are not sufficient to satisfy Rule 56(d). Defendants' assertions that it is “possible” that Clear Channel could produce relevant documents and that “the City could” identify witnesses are the sorts of speculative and bare assertions that the Second Circuit has stated cannot form the basis of a Rule 56(d) delay. See Alphonse Hotel Corp., 828 F.3d at 15152. Moreover, the Court is not persuaded that additional discovery would yield relevant information on the narrow subjects of this motion for partial summary judgment-i.e., the proper interpretation of the Stipulation and the Billboard Ordinance. As discussed in Section II.B.2, supra, the Stipulation is unambiguous and it is therefore inappropriate to consult extrinsic evidence to interpret that document. See Cevasco v. Nat'l R.R. Passenger Corp., 606 F.Supp.2d 401, 419 (S.D.N.Y. 2009) (declining to delay deciding summary judgment motion to allow further discovery because the “issues for which the discovery is sought,” including extrinsic evidence related to unambiguous contract, “are not relevant to the resolution of [defendant's] motion”). And beyond the conclusory statement that these matters are “critical . . . to the meaning and interpretation of the . . . Code,” the City fails to explain how any testimony by Clear Channel personnel about Clear Channel's business decisions, see Chafizadeh Decl. ¶ 22, could shed any light on the meaning of a City ordinance. In sum, the City has failed to explain how this testimony “would raise a question of fact sufficient to survive summary judgment” as to the issue raised in this motion. Loma Deli Grocery Corp. v. United States, No. 20-cv-7236 (JPC), 2021 WL 4135216, at *12 (S.D.N.Y. Sept. 10, 2021); see, e.g., All Am. Tel. Co., Inc. v. AT&T Corp., 328 F.Supp.3d 342, 356-57 (S.D.N.Y. 2018) (denying request to delay summary judgment decision where the outstanding discovery “does not appear to bear on the issues central to” the claims or defenses).
c. The Possibility of Future Legislative Action
Finally, Defendants argue the motion should be denied for the “practical reason” that even if Clear Channel's reading of the Stipulation and Billboard Ordinance are correct, the City could amend its Code to explicitly require removal of the I-95 Billboards. Defs.' Opp. at 23. Essentially, Defendants ask the Court to postpone decision because that decision could be mooted by future municipal action. It is frequently the case that theoretical future developments-whether those involve governmental or non-governmental actors-could potentially change the critical facts and circumstances presented to courts for adjudication. The role of the Court, however, “is limited to resolving ripe, concrete cases and controversies,” and the Court has been presented with such a controversy here; that the City could pursue different legislative or regulatory steps in the future cannot halt the resolution of the present dispute. See Am. Freedom Def. Initiative v. Metro. Trans. Auth., 889 F.Supp.2d 606, 611-12 (S.D.N.Y. 2012) (citing U.S. Const., art. III, § 2) (denying request to “defer final judgment as to a ripe controversy . . . because at some point a court may need to consider the constitutionality of an as-yet undetermined revision” to state regulations); see also Garcia v. Texas, 564 U.S. 940, 941 (2011) (per curiam) (the Court's task is to “rule on what the law is, not what it might eventually be”). If the City sees fit to amend the Code at some future date during the pendency of this litigation to explicitly require the removal of the I-95 Billboards, that development can be addressed in due course. For now, the Court can and will adjudicate the matter currently before it.
CONCLUSION
For the foregoing reasons, I respectfully recommend that Clear Channel's motion for partial summary judgment (ECF No. 97) be DENIED, solely because Defendants have raised triable issues of fact with respect to their affirmative defense of laches.
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report and Recommendation to file written objections. See also Fed.R.Civ.P. 6(a). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any responses to such objections, shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Nelson S. Roman, United States District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York, 10601, and to the chambers of the Honorable Andrew E. Krause at the same address.
Any request for an extension of time for filing objections or responses to objections must be directed to Judge Roman, and not to the undersigned.
Failure to file timely objections to this Report and Recommendation will result in a waiver of objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Campbell, 782 F.3d 93, 102 (2d Cir. 2015).
SO ORDERED.