Case 1:21-cv-02722 Document 1 Filed 05/14/21 Page 1 of 13 PageID #: 1
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
`
`T-MOBILE NORTHEAST LLC, f/k/a Omnipoint
`Communications, Inc.,
`
`Civil Action No. 1:21-cv-2722
`
` Plaintiff,
`
` -against-
`
`COMPLAINT
`
`USEIN SULJONIC, REMZIJA SULJONIC, SAL
`MURATOVIC, successor-in-interest to RIZO
`MURATOVIC, and BRAHIM MURATOVIC,
`
`Defendants.
`
`Plaintiff, T-Mobile Northeast LLC, f/k/a Omnipoint Communications, Inc. (“T-Mobile”),
`
`by its attorneys Porzio, Bromberg & Newman, P.C., as and for its Complaint against Defendants
`
`Usein Suljonic, Remzija Suljonic, Sal Muratovic, successor-in-interest to Rizo Muratovic, and
`
`Brahim Muratovic (collectively "Landlord" or "Defendants"), alleges as follows:
`
`INTRODUCTION
`
`1.
`
`This action concerns a rooftop lease between a real property owner and a
`
`telecommunications company regarding. The dispute arises over the owners' refusal to let the
`
`telecommunications company perform upgrades to its equipment at this site in Bayside, NY,
`
`even though the lease allows it, to try and extract additional moneys.
`
`2.
`
`T-Mobile, as tenant, and Defendants, entered into a Rooftop Lease with Option
`
`Agreement (the “Lease”) on property owned by Defendants located at 47-10 Laurel Hill Road,
`
`Bayside, New York ("Property"). The Lease expressly permits T-Mobile to use parts of the
`
`Property to install and maintain a wireless facility that consists of telecommunications
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`6418589
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
`
`T-MOBILE NORTHEAST LLC, f/k/a Omnipoint
`Communications, Inc.,
`
`Civil Action No. 1:21-cv-2722
`
` Plaintiff,
`
` -against-
`
`COMPLAINT
`
`USEIN SULJONIC, REMZIJA SULJONIC, SAL
`MURATOVIC, successor-in-interest to RIZO
`MURATOVIC, and BRAHIM MURATOVIC,
`
`Defendants.
`
`Plaintiff, T-Mobile Northeast LLC, f/k/a Omnipoint Communications, Inc. (“T-Mobile”),
`
`by its attorneys Porzio, Bromberg & Newman, P.C., as and for its Complaint against Defendants
`
`Usein Suljonic, Remzija Suljonic, Sal Muratovic, successor-in-interest to Rizo Muratovic, and
`
`Brahim Muratovic (collectively "Landlord" or "Defendants"), alleges as follows:
`
`INTRODUCTION
`
`1.
`
`This action concerns a rooftop lease between a real property owner and a
`
`telecommunications company regarding. The dispute arises over the owners' refusal to let the
`
`telecommunications company perform upgrades to its equipment at this site in Bayside, NY,
`
`even though the lease allows it, to try and extract additional moneys.
`
`2.
`
`T-Mobile, as tenant, and Defendants, entered into a Rooftop Lease with Option
`
`Agreement (the “Lease”) on property owned by Defendants located at 47-10 Laurel Hill Road,
`
`Bayside, New York ("Property"). The Lease expressly permits T-Mobile to use parts of the
`
`Property to install and maintain a wireless facility that consists of telecommunications
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`Case 1:21-cv-02722 Document 1 Filed 05/14/21 Page 2 of 13 PageID #: 2
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`equipment, including radio transmitting and receiving antennas, equipment cabinets and related
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`cables and utility lines (collectively “Antenna Facilities”).
`
`3.
`
`The Antenna Facilities have been in use at the Property since 2009 as part of T-
`
`Mobile’s expansive network of wireless communications equipment to serve T-Mobile
`
`customers and provide mandated 911 services in the area.
`
`4.
`
`As the ever-changing technology requires frequent upgrades and enhancements to
`
`such Antenna Facilities, T-Mobile expressly provided clear language in its Lease allowing it to
`
`make upgrades and enhancements as needed. The Lease grants T-Mobile the right to “alter,
`
`replace, expand, enhance and upgrade the Antenna Facilities” without condition.
`
`5.
`
`T-Mobile has repeatedly sought Landlord's permission to perform necessary
`
`upgrades to its Antenna Facilities on the Property since mid-2019. The upgrades entail
`
`replacement of the existing nine antennas and addition of three more, one at each of the three
`
`existing sectors in the leased area on the roof. The replacement and additional antennas are all
`
`slated to be installed behind an existing screen on the roof, resulting in no additional space taken
`
`or interference with any other uses on the Property.
`
`6.
`
`The upgrades are needed to meet the ever-growing technological demands of
`
`ubiquitous voice and data communications demanded by the consuming public. The upgrades,
`
`routine in nature, will improve speed, quality, and continuity of wireless communications. This
`
`includes telephone calls placed by T-Mobile's customers, law enforcement officials, and
`
`emergency 911 personnel who use and benefit from T-Mobile’s Antenna Facilities.
`
`7. Nationwide deployment of technologies to allow effective and faster wireless
`
`communications is a critical mission of the federal government The Federal Communications
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`Commission, for example, has recognized this vital need, and requires that wireless networks of
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`which T-Mobile's Antenna Facilities are a part must service municipal emergency personnel and
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`allow the public to access 911-services in the event of an emergency.
`
`8.
`
`Despite federal policy, the importance of maintaining and upgrading wireless
`
`antenna facilities, and the express Lease provisions at issue that unambiguously allow for
`
`upgrades, Defendants have repeatedly denied T-Mobile the right to perform the needed upgrades
`
`and enhancements. Rather, Landlord has unreasonably conditioned its consent on a new lease
`
`that would require T-Mobile to pay Landlord substantially higher monthly rent than required
`
`under the Lease.
`
`9.
`
`In denying access to T-Mobile for purposes of making its upgrades, Landlord is in
`
`willful breach of the Lease's terms and Landlord's obligations thereunder. Accordingly, T-Mobile
`
`requires a decree of specific performance and declaratory and injunctive relief enjoining
`
`Landlord from denying T-Mobile the right to upgrade its Antenna Facilities, as specifically
`
`provided for in the Lease.
`
`PARTIES
`
`10.
`
`Plaintiff T-Mobile is a Delaware limited liability company, authorized to do
`
`business in the State of New York.
`
`11.
`
`T-Mobile
`
`is
`
`in
`
`the business of
`
`leasing,
`
`installing and/or maintaining
`
`communications equipment necessary to provide cellular telephone service to the public. T-
`
`Mobile is a wholly-owned subsidiary of T-Mobile USA, Inc., a provider of cellular
`
`telecommunications services in the United States.
`
`12.
`
`Upon information and belief, Defendants are each citizens of the State of New
`
`York and owners of the Property located in Bayside, New York.
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`13.
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`Upon information and belief, defendant Sal Muratovic is successor-in-interest to
`
`Rizo Muratovic pursuant to the conveyance deed dated June 13, 2014 and distribution of the late
`
`Rizo Muratovic's estate.
`
`JURISDICTION AND VENUE
`
`14.
`
`Plaintiff T-Mobile Northeast, LLC, is a citizen of the State of Delaware and is
`
`authorized to do business in New York. The sole member of T-Mobile Northeast, LLC, is T-
`
`Mobile USA, Inc., a citizen of the State of Delaware with its principal place of business in
`
`Bellevue, Washington.
`
`15.
`
`Upon information and belief, Defendants are each citizens of the State of New
`
`York.
`
`16.
`
`The matter in controversy concerns a subject matter in excess of the sum of
`
`$75,000, exclusive of interest and costs. T-Mobile's Lease rights are being impeded, interfered
`
`with, and seriously compromised as a result of Defendants' conduct, which valuable rights were
`
`bestowed upon T-Mobile in exchange for monthly payments made, and to be made, to Landlord,
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`that far exceed $75,000 over the course of the Lease term, including lease renewal terms through
`
`2039. T-Mobile also generates substantial revenue from the use of the Antenna Facilities at issue
`
`in excess of $75,000.
`
`17.
`
`This Court has subject matter jurisdiction over the instant matter pursuant to 28
`
`U.S.C. §1332(a)(1) (diversity of citizenship).
`
`18.
`
`Venue is proper in the Eastern District of New York pursuant to 28 U.S.C. §1391
`
`in that jurisdiction is founded solely on diversity of citizenship, a substantial part of the events or
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`omissions giving rise to the claim occurred in this judicial district (in Bayside), and the property
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`that is the subject of this action is situated in this judicial district (in Bayside).
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`LEASE TERMS
`
`19.
`
`On or about April 29, 2008, T-Mobile and Landlord entered into a Rooftop Lease
`
`with Option Agreement that expressly grants T-Mobile the right to install, operate and maintain a
`
`wireless communications facility on the roof of Landlord's building at 47-10 Laurel Hill Road,
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`Bayside, New York (i.e., the Property). (See Lease, a true copy of which is attached hereto as
`
`Ex. A.)
`
`20.
`
`The Lease option was exercised in mid-March 2009, thereby commencing the
`
`initial five-year term under the Lease through March 2014.
`
`21.
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`The Lease provides that T-Mobile shall operate its Antenna Facilities for the
`
`initial five-year term, plus five successive five-year renewal periods, potentially running, at T-
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`Mobile's option, through March 2039. (Lease, ¶¶ 2, 3). T-Mobile is currently in its second
`
`renewal term, and pays Landlord monthly rent each month as required under the Lease (See
`
`Lease, ¶ 4).
`
`22.
`
`T-Mobile has the unconditional right to install, maintain, and enhance its Antenna
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`Facilities:
`
`7. Improvements: Utilities; Access.
`
`(a) Tenant shall have the right, at its expense, to erect and maintain on the
`Premises improvements, personal property and facilities necessary to operate its
`communications system, including, without limitation, radio transmitting and
`receiving antennas, microwave dishes, tower and base, equipment shelters and/or
`cabinets and related cables and utility lines and a location based system, as such
`location based system may be required by any county, state or federal
`agency/department including, without limitation, additional antenna(s), coaxial
`cable, base units and other associated equipment (collectively, the "Antenna
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`Facilities"). Tenant shall have the right to alter, replace, expand, enhance and
`upgrade the Antenna Facilities at any time during the term of this Lease.
`
`(Lease, ¶ 7(a)) (emphasis added).
`
`23.
`
`The Lease further provides:
`
`5. Permitted Use.
`
`The Premises may be used by Tenant for the transmission and reception of radio
`communication signals and for
`the construction,
`installation, operation,
`maintenance, repair, removal or replacement of related facilities, including,
`without limitation, tower and base, antennas, microwave dishes, equipment
`shelters and/or cabinets and related activities.
`
`(Lease, ¶ 5) (emphasis added).
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`THE EXISTING WIRELESS EQUIPMENT AND PROPOSED UPGRADES
`
`24.
`
`T-Mobile’s Antenna Facilities are uniquely situated on the Property to provide
`
`wireless services to customers of T-Mobile, USA, Inc. (T-Mobile’s parent company) in the
`
`Property's vicinity. T-Mobile’s ability to access the Property to maintain and improve its
`
`equipment is critical in allowing T-Mobile to provide its thousands of wireless customers, and
`
`emergency services personnel, with the highest quality service.
`
`25.
`
`The Antenna Facilities, including all nine existing radio antennas at the site, are
`
`located on the roof. The nine existing antennas were installed at three "sectors" on the roof
`
`(three at each sector), each sector spaced apart at the edge of the roof and pointing in different
`
`directions to transmit the radio waves accordingly. Spanning in front of the antennas, looking
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`outward onto the roof, is sheathing screen at each sector, covering the antennas and
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`accompanying radios and cables, so that the equipment is hidden. The screen is approximately
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`12 feet long.
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`26.
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`The screen is depicted in construction drawings prepared in August 2019 by T-
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`Mobile's licensed engineers, Com Ex Engineers of NY. The construction drawings also depict
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`the upgrades at issue. The drawings show at each sector the work proposed: (a) removing the
`
`three existing antennas and radio (RRU) behind the screen, (b) replacing them with three new
`
`antennas and an RRU, (c) adding one new antenna also behind the screen, and (d) installing
`
`appropriate structural reinforcements for greater support. (See Com Ex Engineers' Construction
`
`Drawings shared with Landlord in 2019, annexed as Ex. B).
`
`27.
`
`Upon completion of the proposed upgrades, all 12 antennas (four at each sector
`
`rather than the current three) will still be shielded behind the existing sheathing screen. This
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`means no additional space will be taken on the roof, and no visible change will occur.
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`28.
`
`The replacement of the nine antennas and installation of three additional antennas
`
`at all three sectors will enhance the quality and efficacy of the wireless communications, all
`
`consistent with T-Mobile's upgrades at like Antenna Facilities within T-Mobile's wireless
`
`network.
`
`LANDLORD HAS BREACHED THE LEASE
`
`29.
`
`In or about mid-2019, T-Mobile first notified Landlord that it was going to
`
`perform the upgrades depicted in the annexed Com Ex Engineer construction drawings. In
`
`emails exchanged between T-Mobile's representatives and Landlord's property manager, Samir
`
`Suljovic, son and authorized representative of Defendant Remzija Suljonic, Mr. Suljovic told T-
`
`Mobile that any additional antennas would not be allowed, and that as a condition to permitting
`
`the upgrades, ¶ 7(a) of the Lease would need to be re-written, asserting that T-Mobile had
`
`engaged in "deceitful" conduct. Mr. Suljovic further stated that T-Mobile would need to pay
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`Landlord additional rental income over and above the rental amounts expressly agreed to by
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`Defendants under Section 4 of the Lease, as he was not satisfied with the initial Lease terms.
`
`30.
`
`By letter dated March 20, 2020, a true copy of which is attached as Ex. C, T-
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`Mobile requested Landlord's cooperation to allow the upgrades. Defendants refused T-Mobile's
`
`request.
`
`31.
`
`The pandemic then erupted and caused a slowdown in work throughout the
`
`country. However, in January 2021, T-Mobile renewed its efforts to perform the upgrades at the
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`Property without further delay.
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`32.
`
`In mid-January, 2021, T-Mobile's contractors visited the Property. They were
`
`given permission by Landlord's representative, Samir Suljovic,
`
`to perform structural
`
`modifications on the roof for greater support of the antenna mounts. The contractors were
`
`expressly told by Mr. Suljovic, however, that T-Mobile could not add any antennas despite T-
`
`Mobile's request and its clear upgrade rights under the Lease.
`
`33.
`
`By letter dated February 18, 2021, a true copy of which is attached as Ex. D, T-
`
`Mobile's attorneys, Porzio, Bromberg & Newman, PC, wrote to Defendants and again demanded
`
`cooperation and adherence to the Lease's unambiguous terms, failing which they would likely
`
`face legal action compelling compliance with the Lease, and reimbursement of all reasonable
`
`legal fees T-Mobile incurs as authorized by ¶ 18(a) of the Lease. Defendants ignored the
`
`February 18, 2021 letter.
`
`34.
`
`Landlord is acting in bad faith and in willful defiance of its Lease obligations in
`
`refusing T-Mobile's requests. In furtherance of federal policy and the public good, T-Mobile
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`seeks to upgrade its Antenna Facilities, while Defendants seek to exploit the opportunity to
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`“squeeze” additional rent from T-Mobile.
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`35.
`
`If T-Mobile is not permitted to enhance its Antenna Facilities, it will be unable to
`
`service the ever-increasing volume of voice and data signals for its customers, a service for
`
`which its customers pay fees. As a result, T-Mobile’s customers and emergency service
`
`personnel may experience dropped calls, loss of data service and a slow down of voice and/or
`
`data transmissions. T-Mobile could invariably experience a loss of goodwill, business, and
`
`customers in an amount that cannot be quantified.
`
`36.
`
`Rather than face any false charge of wrongful entry onto the Property to perform
`
`the upgrades, T-Mobile brings this action for appropriate equitable and declaratory relief from
`
`this Court.
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`FIRST CLAIM FOR RELIEF
`(Specific Performance)
`
`37.
`
` Plaintiff repeats each and every allegation aforementioned as if set forth at
`
`length herein.
`
`38.
`
`Under the Lease, T-Mobile has the express right to "alter, replace, expand,
`
`enhance and upgrade" the Antenna Facilities during the term of the Lease. There is no condition
`
`attendant to such important rights.
`
`39.
`
`The Lease also grants T-Mobile without condition the right to use the Property for
`
`the transmission and reception of radio communication signals, and for the construction,
`
`installation, operation, maintenance, repair, removal or replacement of related facilities,
`
`including, without limitation, tower and base, antennas, microwave dishes, equipment shelters
`
`and/or cabinets and related activities.
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`40.
`
`Landlord's refusal to allow T-Mobile to reasonably enhance and upgrade its
`
`Antenna Facilities as part of its wireless network, which enhancement will not take up any
`
`additional space on the roof and will be completely shielded behind the existing sheathing screen
`
`at each of the three sectors where the antennas currently exist, is a breach of the Lease.
`
`41.
`
`The remedy of specific performance is appropriate to require Landlord to honor
`
`its contractual obligations under the Lease, which it voluntarily entered into.
`
`42.
`
`The terms of the Lease are unambiguous, and specific performance poses no
`
`undue, disproportionate, or inequitable burden upon Landlord.
`
`43. Money damages are an inadequate remedy in light of the unique nature of the real
`
`property and the services that the Antenna Facilities on the Property provide to the general
`
`public, law enforcement, and emergency first responders.
`
`44.
`
`By reason of the foregoing, T-Mobile demands a decree in its favor and against
`
`each of the Defendants in the form of specific performance to enforce the Lease terms, and
`
`particularly, granting T-Mobile immediate access to the Property so it can install, maintain, and
`
`enhance its Antenna Facilities without further delay.
`
`SECOND CLAIM FOR RELIEF
`(Declaratory Judgment)
`
`45.
`
`Plaintiff repeats and realleges each and every allegation aforementioned as if set
`
`forth at length herein.
`
`46.
`
`The express provisions of the Lease require Landlord to permit T-Mobile to
`
`access the Property and replace and enhance its Antenna Facilities. This includes replacement
`
`and supplementation of its antennas and related radio equipment as depicted in the construction
`
`drawings provided to Landlord for this site.
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`47.
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`T-Mobile has made numerous requests for such access, and Landlord has
`
`repeatedly denied the right to add any antenna, conditioning such right on an agreement to pay
`
`additional monthly rent and revising the existing Lease provisions regarding upgrade rights.
`
`48.
`
`Landlord has unreasonably claimed that T-Mobile must pay additional rent and
`
`agree to revise the Lease as a condition to allowing upgrades.
`
`49.
`
`Accordingly, an actual controversy of a justiciable issue exists between T-Mobile
`
`and Landlord within the jurisdiction of this Court, involving the rights and obligations of the
`
`parties under the Lease.
`
`50.
`
`Antagonistic claims exist between the parties with respect to whether or not T-
`
`Mobile is entitled to unimpeded access to replace and enhance its Antenna Facilities, and
`
`whether additional monthly rent payments are permissible, as Landlord demands.
`
`51.
`
`By reason of the foregoing, T-Mobile seeks a declaration that the Lease requires
`
`each Defendant, and their agents and representatives, to permit T-Mobile and its agents,
`
`contractors, and representatives to have unimpeded access to the Property to replace, improve,
`
`upgrade, and enhance its Antenna Facilities, which includes installation of three new antennas,
`
`one at each of the existing three sectors on the roof.
`
`THIRD CLAIM FOR RELIEF
`(Injunction)
`
`52.
`
`Plaintiff repeats and realleges each and every allegation aforementioned as if set
`
`forth at length herein.
`
`53.
`
`The equities here require that Defendants, and their agents and representatives, be
`
`enjoined from interfering with T-Mobile's Lease rights, and be directed to permit the needed
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`upgrades and enhancements to its equipment.
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`54.
`
`55.
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`The public and first responders will benefit from such injunctive relief.
`
`Defendants will not be harmed to be ordered to abide by and honor the Lease to
`
`which they each agreed.
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`FOURTH CLAIM FOR RELIEF
`(Reimbursement of Legal Fees Pursuant to the Lease)
`
`56.
`
`Plaintiff repeats and realleges each and every allegation aforementioned as if set
`
`forth at length herein.
`
`Section 18(a) of the Lease states:
`
`18. Miscellaneous.
`
`(a) The prevailing party in any litigation arising hereunder shall be entitled to
`reimbursement from the other party of its reasonable attorneys' fees and court
`costs, including appeals, if any.
`
`57.
`
`T-Mobile requests that the court award it all reasonable attorneys and court costs
`
`in this action, which has been thrust upon T-Mobile due to Defendants' unreasonable refusal to
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`cooperate, bad faith, and attempt to hold T-Mobile up for ransom knowing that it wants to
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`perform the upgrades at issue.
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`WHEREFORE, plaintiff T-Mobile demands judgment against Defendants, as follows:
`
`(a) On the First Claim for Relief, compelling Defendants to perform all
`obligations under the Lease under a decree of specific performance, including
`allowing all upgrade and enhancement work that T-Mobile seeks to perform
`to its equipment on the roof at the Property;
`
`(b) On the Second Claim for Relief, awarding T-Mobile a declaration that the
`Lease requires Defendants to permit T-Mobile and its representatives and
`contractors to have unimpeded access to the Property to replace, upgrade, and
`enhance its Antenna Facilities;
`
`(c) On the Third Claim for Relief, enjoining Defendants and their agents and
`representatives from interfering with T-Mobile's Lease rights, and be directed
`to permit the needed upgrades and enhancements to its equipment.
`
`(d) On the Fourth Claim for Relief, granting T-Mobile all court costs and
`reasonable attorneys’ fees as provided under the Lease; and
`
`(e) Granting T-Mobile such other and further relief as deemed just and proper.
`
`Dated: New York, New York
`May 14, 2021
`
`PORZIO, BROMBERG & NEWMAN, P.C.
`
`By:
`
`s/Gary M. Fellner
`Gary M. Fellner
`1675 Broadway, Suite 1810
`New York, NY 10019
`Tel: 212-265-6888
`Email: gmfellner@pbnlaw.com
`Attorneys for Plaintiff, T-Mobile Northeast LLC
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