On June 1, plaintiff Ninety Sixty LLC filed a breach of contract complaint against Sprint Spectrum Realty, Company, L.P., and T-Mobile USA Inc., alleging that they installed cell tower equipment without permission. Ninety Sixity alleges that a cell tower mounted by the defendants encroached on its property and violated terms of a contract. Sprint was acquired by T-Mobile on April 1, making it a successor in interest to the company; both are collectively referred to as “Sprint” in the complaint. The case is being held in the Southern District of New York before Judge Colleen McMahon. The plaintiffs are represented by Ulmer & Berne.
Sprint allegedly mounted a cell tower installation on a residential townhouse immediately adjacent to one owned by Ninety Sixty. Ninety Sixty co-owner Gerald Kerner noticed the installation prior to moving into the house in 2012. According to the complaint, the equipment was disguised, and “antennas were painted to look like the brickwork and thus were camouflaged.” Being close in proximity to the installation, Kerner feared he would receive excessive electromagnetic radiation.
Kerner and his wife hired telecommunications firm V-Comm LLC to take measurements of the electromagnetic field and to evaluate the tower’s emittance of radio-frequency radiation, in accordance with Federal Communications Commission (FCC) regulations. The firm allegedly found that the antennas placed by Sprint “show[ed] a predicted maximum [radiation] level of 1312% of the FCC standard, and [were] thereby non-compliant with FCC Rules and Regulations.”
After V-Comm informed Sprint of the issue, it removed the offending antennas and signed into a written agreement with Ninty Sixty on July 31, 2012, promising “to reimburse Ninety Sixty for the professional fees it paid to the Engineering Firm,” and that it would not place anymore encroaching equipment on the property. In early April 2019, Kerner noticed that Sprint installed new antennas on the same roof and would require a crane to place 5G equipment.
That month, several members of Sprint’s upper management were allegedly questioned about the installation but were not aware of the 2012 agreement. In June 2019, Ninety Sixty also sent a letter to Sprint’s General Council, explaining the failures of the company’s executives. According to the complaint, Sprint never responded to the letter.
Ninety Sixty alleges that Sprint caused physical damages in excess of $75,000 due to its unauthorized use of the property. As a result of Sprint’s breach of contract, Ninety Sixty demands that all infringing equipment be removed from the property, an issue of permanent injunctive relief compelling Sprint’s departure from the building, and monetary damages.
