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15:34
JUDGE RAKDFF
P.01/28
Chambers ofHon. Jed S. Rakoff United States District Court United States Courthouse 500 Pearl Street, ChambersI340
New York) New York 10007
(212) 805-0401 fax (212) 805-7935
TO:
James V. Galvin
Mac Yean) Lewis) Sherwin & Mclzerrnott,
Fax: (845)-343-3866
P.C.
34 Grove Street, P.O. Box 310
Middletown, NY 10940 (845)-343-3000
Mark Putnam Gimbel Covington & Burling LLP(NYC) 620 Eighth Avenue
Fax: 212~841-1010
New York, NY 10018-1405 212-841-1000 Richard Martin Mahon Tarshis, Catania, Liberth, Mahon & Milligram One Corwin Court Post Office Box 1479 Newburgh, NY 12550 845-565-1100
Pax: 845-565-1999
NDV-28-2011
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JUDGE RAKDFF
P.02/28
Mark Eliott Klein Office of New York State Attorney General 120 Broadway, 24th Floor New York, NY 10271 212 -416-8888 Carl Steven Sandel Morris Duffy Alonso & Faley Two Rector Street, 22nd Floor New York, NY 10006 (212)-815-0658 Brian S. Sokoloff Sokoloff Stem LLP 355 Post Avenue Suite 201 Westbury, NY 11590 (516) 334-4500 Michael Howard Sussman Sussman & Watkins Post Office Box 1005 55 East Main Street Goshen, NY 10924 FROM:
Aaron Scherzer Law Clerk to Hon. Jed S. Rakoff
Fax: 212 416-6075
Fax: (212)-766-3252
Fax: (516) 334-4501
Fax: (845) 294-1623
DATE: RE:
MESSAGE:
November 28, 2011 Ki!)'as Joel Alliance et at v. Village of Kiryas Joel et ai, 11 Civ. 3982 Please see attached.
FAGES:
28 (including cover)
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JUDGE RAKDFF
P.03/28
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK KIRYAS JOEL ALLIANCE.
------------------------------------x
et al., 11 civ. 3982 (JSR) Plaintiffs. -v-
OPINION AND ORDER
VILLAGE
OF KIRYAS JOEL, et al.,
Defendant. ----------~-------------------------- x JED S. RAKOFF.
U.S.D.J.
Plaintiffs, Village
members
of a \\dissident (the "Village"),
tl
population
within defendant
of Kiryas Joel
bring this action alleging
that the Village
is a "theocracy."
the affairs of which are so with religion" that its livery
\\inherently infused by, and entangled, existence" See Amended violates the Establishment
Clause of the First Amendment. In particular
I
Complaint
('\Am. Comp l ,") ~ 1.
plaintif fs
allege that the Village Congregation Yetev"). buildings violatBs Yetev Lev
is subject to the dictates
D'
of defendant
Satmar of Kiryas Joel
(\\Congregation all
Moreover,
plaintiffs
allege that a law requiring room"
to have a "community the Establishment
(the \\Community Room Law") the purpose and effect of
Clause because
the law are to promote have been discriminated
religion.
Plaintiffs
also allege that they by the Village on the
against and repressed
basis of their dissident
ViBWS in a variety of ways, inCluding:
1
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15:34
JUDGE RAKDFF
P.04/28
excess municipal enforcement
fees, reduced police protection, speech and zoning ordinances.
and disparate
of public
On the bases of these allegations,
the Amended
Complaint
asserts to
five claims: Violation Violate
of the Equal Protection Clause; Violation
Clausei Conspiracy
the Equal Prot~ction
of the Free Exercise of the 42
Clausei Violation Religious
of the Establishment
Clause; Violation Persons Act
Land Use and Institutionalized 2000cc et seq. defendants
("RLUIPA"),
U.S.c.
§
The various motions
(eleven in all) have filed five separate of the parties' written As a
to dismiss.
After full consideration
I
submissions
and oral arguments
the Court grants the motions.1 with prejudice
l
result, all claims are dismissed Establishment
except for the Room Law. This
Clause claim relating
to the Community
latter claim is dismissed Second Amended identified complaint
without prejudice that attempts
to plaintiffs'
filing a
to cure the deficiencies
herein. of a motion to dismiss in the complaint
I
For purposes well-pleaded reasonable
the Court "accept [s] all as true favor." [and] drawls] all
allegations inferences
in the plaintiff's
S.E.C. V. Gabelli, Trust
653 F.3d 49 (2d Cir. 2011) (quoting 0Eerating
Local 649 Annuity
1 By stipulation dated August 30, 2011, plaintiffs voluntarilY dismissed the New ~ork Secretary of state from the action. ~laintiffs also vOluntarily withdrew their "offiCial capacity" claims against defendam:s Reisman, Goldstein, Freund, Landau, and Weider. Plaintiff's Memorandum of Law in opposition to Defendant's Motion eo Dismiss ("P1. Mem.") at 64 _ Finally, plaintiffs requested leave to amend their complaint to name Mayor Abraham Weider in his individual capacity, id_, but, as a result of the Court's instant decision, that request is moot. ---
2
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Fund v. smith Barney The pertinent documents
Fund Mgmt. LLC1
595 F.3d 861
91 (2d Cir. 2010». Complaint, from
allegations,
taken from the Amended in that complaint, to judicial
expressly
referenced
and from materials notice
l
in the public follows:
record that are subject
are as
The Village of Monroe
of Kiryas
Joel is an enclave
located within
the Town
in Orange
County, New York.
It was incorporated
as a Joel
municipality Teitelbaum. as an enclave exclusively
in 1977 by the late Grand Rebbe of Satmar Hasidism, Am. Compl. ~~ 39-41. Although the village
was created almost rift the members
for the Satmar Hasidim
and remains
populated
by followers two Satmar
of Satmar Hasidism, factions
a significant namely
exists between
in the Village,
of the Village's population.
main congregation
and the so-called
"dissident" over who
The schism primarily
stems from a dispute
should be the proper 45{ 48-59. current
leader of the Satmar Hasidim.
Id. ~~ 2, 41, 44of the
The dissidents
do not "approve of" the leadership Id. ~ 4B. zalman Instead,
Grand Rebbe,
Aron Teitelbaum. that Aron's
many of
the dissidents [Congregation approximately
believe Yetev]
brother
should be "running has
instead of Aaron.1I roughly views.
Id. ~ 49. The Village
20,000 residents;
B,OOO
rd."
of those residents 11-20, 41. Mayor; he also serves Yetev.
share the plaintiffs' Defendant Abraham
"dissident" weider
is the Village's
as "ROsh H'Khal"
or "Head of the Congregation"
of Congregation
3
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15:35
JUDGE RAKDFF
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Id. ~~ 26-27, 30, 53. Village official"
Moreover,
"every other elected and appointed Yetev. Motion to
is allegedly a member of Congregation of Law in Opposition Defendant
Plaintiffs' Dismiss
Memorandum
to Defendants'
("Pl. Mem.") at 4.
Moses Witriol,
also a member of
Congregation Department
Yetev, is the Director
of the Village of Kiryas Joel
of Public Safety.
Am. Compl. 1 190.
The rift between litigation
the two Satmar factions has spawned repeated
in state and federal courts over the past two decades. School District v.
See, e.g., Board of Educ. of Kiryas Joel village Grumet,
512 U.S. 687 (1994).
The Second Circuit has noted that some allegations, are "deeply troubling in
of the dissidents' that, if true, are routinely group. "
previous
[they] describe[]
a town in which public of the dominant
institutions religious
107
being used as instruments
Waldman v. Village of Kiryas Joel, 207 F. 3d 105,
(2d
Cir. 2000). The Amended both plaintiffs' by "thwarting" Complaint further contends that the Village violated
constitutional
rights and their rights under RLUIPA Bais Yael's attempts to use a Am.
dissident
congregation
piece of residential CampI. ~~ 165, 173. Congregation
property
as a synagogue
(the \\Property," ). annexed to built in
The Property
is an apartment
Yetev's Grand Synagogue.
It was originally
1975 to house the late Grand Rabbi Joel Teitelbaum Feige Teitelbaum (or the \'Rebitzon").
and his spouse, to live in the
Feige continued
4
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15:35
JUDGE RAKDFF
P.07/28
apartment
until her death
in 2001,
Before
her death,
however,
and in Inc.
after Joel Teitelbaum's the Property
death in 1979, she conveyed See Congregation
her interest
to Bais Yoel.
Yetev Lev D'Satmar,
435
v. 26 Adar N.B. CorE" 1993) (per curiam) Congregation conveying
192 A.D.2d
SOl, 596 N.Y.S.2d conveyance
(2d Dep't. by
(upholding Feige's it).
in a suit brought was akin to
Yetev to invalidate
The transfer
a small wing of a house.
within
In other words,
Bais Yoel owns a grounds to
~footprintff of real property
the Grand Synagogue's
it does not own any of its surrounding accommodate After parking access
lands nor any easements thereon. See id.
and utilities
the Rebitzon's
death, Bais Yoel began using See Am. Compl. ,,167-69.
the property By 2004, the with more See Gimbel
to hold religious Property than 300 Decl.
services.
was operating persons
as a large-scale the Property
house of worship, on a daily basis.
visiting
Ex. B, (~Bais Yael I Decision,"
However,
dated Jan. 24, 2008) Court, that
(unreported).
after a trial in New York Supreme
court held that the Property purposes unless
could only be used for residential for and received See id. municipal approval
Bais Yoel applied purposes.
to use it for religious that any municipal would require Congregation egress,
The court further held for religious as well as services
approval
of the residence Yetev's permission,
Congregation Yetev's
agreement easements
to expand the scope of ingreas, appurtenant to the property -- all of
and utility
5
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15:35
JUDGE RAKDFF
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which were then limited to residential decision was affirmed this litigation.
use.
Id. at 5-6.
The
to
on appeal, with modifications
not material
See Bais Yael Ohel Feige v. Congo Yetev Lev D'Satmar
741 (2d Dep't
of Kiryas Joel, Inc., 885 N.Y.S.2d
2009)
(per curiam). to use the
After Bais Yael I was decided, plaintiffs Property November for religious services. Accordingly,
continued
by order dated
30, 2009, Justice Owen of New York State Supreme Court held Bernard Tyrnauer, and Meyer Deutsch
in
Bais Yael, Zalman Waldman, contempt for violating
the trial court's judgment and continuing
unlawful
to
use the Property
~as a non-conforming,
house of worship excuse or
30,
without municipal
approval,
.!
and [failing] to satisfactorily
Ex.
explain said contempt
2009,
Gimbel Decl.
C, Order dated Nov.
(Bais Yael I "Contempt Order"). blatant disregard
The Contempt Order stated that system is so evident remedy is
"plaintiffs'
for the judicial
at this point that the Court believes
the only appropriate and,
to order full closure of the subject premises incarceration
of those individuals
absent compliance,
Id. at 3. The
responsible.u
Order was affirmed on appeal. See Bais Yael Ohel Feige v. Congo Yetev Lev D1Satmar
2010)
of Kiryas Joel, Inc., 910 N.Y.S.2d
174, 175
(2d Dep't
(per curiam) . Subsequently, plaintiffs filed a second state court action Bais Yael Ohel Feige v. (N.Y. Sup.
against Congregation
Yetev and the Village,
Congo Yetev Lev D'Satmar
of Kiryas Joel, No. 5655-2010
6
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JUDGE RAKOFF
P.09/28
Ct. ) (\IBais Yael IP'). filed, repave Congregation the parking This
Less than twa weeks after Bais Yoel II was Yetev began a construction project to expand and
lot outside ~construction a historic
its Grand Synagogue.
See Am. Compl. of the
~~ 186-98. property, destroyed utility 183.
blitz ripped up the cartilage stone walkway, tore apart
including
fencingl
part of the porch and other structures to the building.
/I
and ripped down at 53 i Am. CampI. and for ~~ 186to the related ~
wires running
PI. Mem.
Officers
of the KJPS were present dissidents, including
for the operation plaintiff project. Waldman,
arrested
several
attempting 98.
to obstruct
the construction brought
Am. Compl. project
Plaintiffs
immediately
the construction brought
state courtls
attention,
and successfully
allegations
to the "blitz/( into that litigation. (transcript plaintiffs
l
See Crowley Decl. Ex. I at 20 The Court granted the
of hearing request
on June 7,
2010).
for a Temporary
Restraining
Order preventing
further work on the construction however,
0, P, RI
project;
the Second Department, Decl. Exs I, L, M, N,
lifted
S
&;
the TRO on appeal.
See Crowley
1',
The Amended enforces public
Complaint speech
also alleges
that the Village
selectively Yetev 323-
ordinances dissident
so as to promote views.
Congregation ~~ 100-60,
and discriminate 28.
against
Am. Compl.
On at least two occasions, to intervene to prevent
Moses Witriol Congregation
and the KJPS allegedly Yetev from playing loud
refused
7
NOV-28-2011
16:35
JUDGE RAKOFF
P.1O/28
music at night through loudspeakers
105-111. This loud music playing Id.
at its Grand Synagogue.
allegedly
l
Id. ~~
violated also
a local noise "escorted
1
ordinance.
On several occasions
witriol
a around
truck, which was broadcasting the Village."
Lieberman, Id. ~ 128.
'anti-dissidentl
announcements Joel
During
the same time period,
was "prohibited loudspeakers
a non~party
dissident,
from announcing
-- regarding
lIthe
a
protest"
Spanish 150.
-- by driving government's
a truck with
treatment
of Jewish graves in Spain.,1
Id. ~
Moreover,
in November
2009, the Village
denied plaintiff
Tennenbaum
against
and a group of dissidents
a permit to hold a protest
in front of Teitelbaum/s permit house.
Grand Rebb~ Aron Teitelbaum The village
Id. ~~ 138-49. because,
denied Tennenbaum's
application
it said,
the house was on a "dead-end service
street which also
which
houses
the only ambulance
in the village,
is dependent
Id. ~
on open ingress and egress to serVE! the needs of the Village.'1
148. Instead, the village proposed that Tennenbaum "consider
locations
where your groups has
[sic] already held past protests:
along Forest or Bakertown had many protests
locations Next, Department without
Roads or even Acres Road. Your group has
its First Amendment rights along these Id.
exercising
any interference Complaint
from the Village."
the Amended of Public
alleges
the
that the Kiryas Village's
Joel
Safety
("KJPS"),
law enforcement
8
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JUDGE RAKDFF
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arm, and Witriol, enforced" 229; ~ permitted
the Director
of the KJPS, have
"selectivelyAm. Compl. that KJPS ("UTA"), with and ~
the law so as to \\repress the dissidents." id. ,,225-34. schoolchildren private Yetev, In support, plaintiffs allege
from the United Talmudical school, which
Academy
the village's Congregation harassing
religious
is affiliated
to I'blanket the Village that contain
streets with hostile
leaflets
the names, pictures
and phone numbers .. ~~ without 292-321.
of 'dissidents'
who have married, approval."
or intend to marry,
the Grand Rebbe's The dissidents because response
Pl. Mem. at 51; Am. Compl.
went out themselves
at night to clean up the leaflets, Id. ~ 307. In on
they were not cleaned up by the KJPS. to this state of affairs, to coerce the village
some dissidents
\\threw garbage up." Id. ~
the streets 317.
to clean everything
Plaintiff
David WaIner waS accused
of being one of the garbagewith
throwers, disorderly
an allegation conduct.
which he denies; he was later charged
~~ 318-20.
Id.
In addition, dissidents Id. ~ 236. KJPS because of the
'Imobs of hundreds
of UTA boys" assaulted Rafael
two
-- plaintiff Plaintiffs
Isaac Srugo and non-party allege that both incidents
Rabinowitz.
were caused by the
the UTA students Yetev]-run
"knew that KJPS, as an instrumentality Village government, supported their See Pl.
[Congregation and
80
missions"
would not intervene
to protect
dissidents.
Mem. at 50.
Plaintiff
Kiryas Joel Alliance
has allegedly
been forced
9
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JUDGE RAKDFF
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to hire private refusal
security
to protect
its members
because
of KJPS's ~ 241.
to protect
them from such harassment. that the village, authority
Am. Compl. through
Plaintiffs
also allege
its Community
Room Law, uses its governmental resources to Congregation Yetev.
to divert
funds and the Community
The Village
enacted
Room Law in 2007; community
it requires all building developers
of obtaining rd.~' Planning 348-49.
to construct a
room as a condition
Board approval The law imposes
for new residential strict conditions
construction.
on the operation
of community plan,
II
rooms and requires \\the room or
developers perpetual
to submit an "operational continuing availability community,
that ensures
and use of the community charitable
I
rooms for recreational, rd. ~ 350. Under
civic or other uses." to
the law, if a developer
finds it unfeasible
build a community
room, he must pay a fee of \\not less than $5, 000 which is deposited into a "community rooms in the room
per unit" to the Village, fund" used solely Village.
for the prOVision
of community
Id. ~ 351. all of the community rooms are allegedly ld.'~ 352, 355.
With one exception, used as synagogues The exception dissident
and run by Congregation
Yetev.
is a community
room which was recently initially refused
built by a to grant a
developer.
The Village
Certificate is managed
of Occupancy
by non-party
to its builder, Lipa Deutsch,
non-party
prag Realty, the
which
and sought to require
10
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JUDGE RAKDFF
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developer village
to pay the $5,000 per unit fee. that it assessed
Id. ~~ 357-62.
The room
asserted
the fee because
the community
did not meet the legal specifications allege that the fee was assessed
for such rooms, but plaintiffs Prag Realty Id. After did not intend Prag Realty however,
because
to use the community retained counsel
room as a synagogue. the Village/s
to dispute
fee determination, Prag Realty the
the Village Certificate Against
reversed
its position without
and granted charging
of Occupancy
a fee.
Id. ~ 362. the Court
the background
of these diverse
allegations,
turns to a consideration a complaint true
l
of plaintiffs' "sufficient
claims.
Under Rule 12(b) (6), accepted as
must include
factual matter,
to 'state a claim to relief that is plausible v. Iqbal, 129 S. Ct. 1937,
550 U.S.
on its face.'"
Ashcroft
1949
(2009) (quoting Bell Atlantic "The plausibility but it asks for
Corp. v. Twombly, standard
544, 570
(2007).
is not akin to a Iprobability
requirement,'
more than a sheer possibility
that a defendant
has acted unlawfully." pleads
Id. "A claim has facial plausibility factual content that allows
when the plaintiff
the court to draw the reasonable is liable for the misconduct allegations alleged."
inference Id.
that the defendant
Moreover,
the Court cannot consider
that the the may not
plaintiffs motion
raise for the first time in their brief opposing because "it is axiomatic that a complaint
to dismiss
11
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15:35
JUDGE RAKDFF
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be amended Wright
by the briefs
in opposition
to a motion
to dismiss,"
v. Ernst
& Young LLP, 152 F.3d 169, 178 (2d Cir. 1998)
the merits of plaintiffs' claims, the Court As
Before
addressing
must consider
two threshold
issues: res judicata contends
and standing.
for res judicata,
the Village refusal
that those claims which are
based on the village's as a synagogue/
to allow Bais Yoel to use the property of res jUdicata. applies where ~(1)
are barred
by operation
Under New York and federal the previous previous them; and action involved
law, res judicata
an adjudication
on the merits;
(2) the with
action
involved
the plaintiffs
or those in privity
(3) the claims asserted
in the subsequent
action were, or v, N.Y.C. omitted)
2
could have been, raised Dep't of Carr.,
in the prior action." (2d Cir. 2000}
Monahan
214 F.3d 275/285 "prevents
(citations
Thus, res judicata defense
a party
from litigating or decided
any issue or suit,
that could have been raised
in a previous
even if the issue or defense was not actually Woods v. Dunlop Tire CorE., whether 972 F.2d 36,
raised or decided."
38 (2d Cir. 1992}. the
In evaluating
claims are barred by res judicata, the claims involve
Court must determine Woods,
2
whether
the same transaction. looks primarily to
972 F.2d at 38-39.
The Court, therefore,
A federal court "must give to a state-court judgment the same preclusive effect as would be given that jud~ment under the law of the State in which the judgment was rendered." Mira v. Warren City Sch. Diet. Ed. of Educ., 465 u.S. 75, 81 (1984). Thus, the preclusive effect of the previous New York state actions is governed by New York law. However, ~[tlhere appears to be no significant difference between New York preclusion law and federal preclusion law.~ Pike v. Freeman, 266 F.3d 78, 91 n.14 (2d Cir. 2001), and thus the respective standards will not be discussed separately.
12
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JUDGE RAKDFF
P.1S/28
the facts that underlie
the cause of action, as opposed Id. Moreover,
to the legal
theory framing the complaint.
while ~[i]t is true
that res judicata will not bar a suit based upon legally significant acts occurring after the filing of a prior suit that was itself based where a plaintiff instances asserts in a later
upon earlier act,n nonetheless, action
"nothing more than additional
of what was previously Waldman,
207
asserted,U
the actions arise from the same transaction,
F.3d at 113. Plaintiffs do not dispute that the first two requirements here, because the prior cases resulted of res in
judicata are presented final judgments privies.
on the merits and involved the same parties However,
or their
See Pl. Mem. at 13-18.
they contend that the that were
claims alleged here do not arise from the same transactions at issue in the previous ~two independent cases. Specifically, plaintiffs
argue that
fact patternsN
on which Bais Yoel's claims in the
instant action are predicated litigation:
were not raised in the prior blitz,N and (2) the Village's for the Property to be used as a Both "fact In work in
(1) the ~construction
failure to grant municipal synagogue patterns,"
approval
after Justice Owen's decision however, were significant
in Bais Yoel I.J
issues in Bais Yael II,
fact, the plaintiffs
obtained a TRO against the construction
3
plaintiffs also raise some new facts in their opposition to the moticn to dismiss. See, e.g., Pl. Mem. 60 (discussins the ZBA's inaction). As discussed above, the Court cannot consider facts not raised in the Complaint.
13
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JUDGE RAKDFF
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Bais Yoel II.4 Moreover, case is different
while the relief plaintiffs
seek in this
from the easement
they sought in the state court, analysis. See Waldman; of res
that does not affect the Court;s res judicata :207 F.3d at 110-12 judicata different relief) . Accordingly, regarding res judicata bars plaintiff allegedly (a plaintiff
"cannot avoid the effects
by \splitting'
his claim into various or by requesting
suits, based on forms of
legal theories,"
different
Bais Yael's application
claims of Clause
the Village's
discriminatory
zoning ordinances. and Establishment zoning ordinances prejudice.
Insofar as plaintiffs'
Equal Protection
Clause claims are based on application to the Property,
of the with
those claims are dismissed Free Exercise
And since plaintiffs'
Clause and RLUIPA5 to
claims are based entirely the Property; entirety,
AS
on the application
of zoning ordinances in their
therefore,
those claims are also dismissed,
with prejudice. several of plaintiffs'
by
for standing, allegedly
allegations and therefore
relate to must be must
injuries dismissed
suffered
non-parties,
for lack of standing. (1) "specific, practices
To have standing,
a plaintiff
demonstrate challenged distinct
q
concreteil facts demonstrating
that the (2) a
directly
harmed him or her by causing
and palpable
above,
'\injury-in-fact" to a legally cognizable
of that TRO was overturned on appeal. in state
As discussed
the grant
5 As discussed above, plaintiffs received a full and fair adjudication court on the application of the zoning ordinances.
14
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JUDGE RAKDFF
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interest
that is (3) fairly traceable
to defendants'
conduct and
(4)
capable of being redressed
V.
by a favorable
court decision.
(1992).
See Lujan
Defenders
of Wildlife,
504 U.S. 555, 560
Moreover, See Lewis v. \\ [i)t is
standing must be established Casey,
518 U.S. 343, 358 n.6
for each claim asserted.
(1996),
Furthermore,
axiomatic exercised
that the judicial power conferred unless the plaintiff
by Art, III may not be
shows that he personally
has suffered
some actual or threatened
injury as a result of the putatively
'I
illegal conduct of the defendant.
999 (1982).
Blum v. Yaretsky,
457
U.S.
991,
Therefore,
as the Supreme Court held in Blum:
[ilt is not enough that the conduct of which the plaintiff complains will injure someone. . Nor does a plaintiff who has been subject to injurious conduct of one kind possess by virtue of that injury the necessary stake in litigating conduct of another kind, although similar, to which he has not been subject. Id. (emphasis In original) . Here
l
the Amended
Complaint
asserts
factual allegations including:
relating
to harms allegedly
suffered by several non-parties for garbage removal
municipal
fees charged
levied against non-parties
of
Keren Chasanim village alleged
and Congregation
Tiv Livov; the KJPS' enforcement Joel Lieberman;
noise ordinances failure
against non-party non-party
the KJPS'
to protect
Rafael Rabinowitz alleged
from attack by
groups Of UTA schoolchildren; property tax exemptions
the Village'S
failure to grant and
to non-parties Yetev's
15
Samuel Eisenberg
Congregation
TA;Congregation
refusal to allow the non-party
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15:37
JUDGE RAKDFF
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Pearlstein Congregation wrongful
family
to bury their relative
Eziel Pearlstein the Village's Rossini improper
in the main alleged
Yetev cemetery
in the Villagei Lawrence
termination
of non-party
from his position delay in granting
as a building non-parties
inspector;
and the Village's and Lipa Deutsch
Prag Realty
Certificates
of Occupancy
for a residential
development
based on their plans
to use a community
room for non-religious
purposes. plaintiffs' argument that the
The Court finds unpersuasive Kiryas Joel Alliance
("KJA/I) may assert,
in a representative
by its members
capacity, parties.
claims based on harms suffered As the Second Circuit
who are non644 F.3d 147, to assert
§
held in Nnebe v. Daus, does not have standing under 42 U.S.C.
(2d Cir. 2011)
~an organization
the
rights of its members because at 156. Of course
I
in a case brought
1983/1 Id.
§
1983 rights are ~personal
to those"
that are injured.
an organization
may bring suit on its own behalf the requirements of Article
"so III
long as it can independently standing as enumerated
satisfy
II
in Lujan.
rd. i see also N. Y. Civil Liberties 652 F.3d 247, 255 (2d Cir. 2011) to its own
Union v. N.Y. City Transit (organization rights divert has standing
Auth.,
to sue when it alleges Therefore
I
injuries
as an organization). resources .
KJA's claim that it had to to provide "security to to
from its other activities . because
the dissidents
KJPS was not properly
attending
l6
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15:37
JUDGE RAKDFF
P.19/28
them,n Pl. Mem. at 26, does provide See Nnebe, 644 F.3d at 156-57 main activities Therefore,
standing
as to that claim alone. from an standing above, on KJA
(diversion of resources is a harm that confers
organization's
that organization). has standing failure
of the claims discussed
only to assert claims related non-party
to the KJPS' alleged from attack by groups above are of
to protect
Rafael Rabinowitz
of UTA schoolchildren. dismissed with prejudice
All of the other claims discussed for want of standing,
with the exception without
the Community
Room Law claim, which is dismissed
prejudice.
Now that the Court has limited plaintiffs' which they have standing judicata, remaining
claims to those for
by res
and those that are not barred
the Court turns to a consideration claims. The plaintiffs Clause.6 assert
of the merits
of the of
three separate allege
violations that
the Equal Protection defendants . public to strictly allege charged 37.
First, plaintiffs Yetev]'s
~facilitate speech
[Congregation
blatant
violations
of .
laws while at the same time requiring Pl. Mem. at 47. Second, and Wolner were falsely Am. Compl.
'dissidents' plaintiffs arrested and 333-
comply with them.H Waldman
that plaintiffs with crimes
they did not commit.
~, 317-21,
Third, plaintiffs dissidents
allege that the KJPS discriminatorily from violence perpetrated
refuses
to protect
by UTA children.
6 Plaintiffs also broughc two other equal protection claims, which are dismissed for the other reasons discussed above. The first, relating to zoning restrictions on the Bais Yael property, is barred by res judicata. The second, relating to the Village's imposition of fees on dissident organizations, Pl. Mem. at 47-54, is dismissed for lack of standin~.
17
NDV-28-2011
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JUDGE RAKDFF
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In order to bring an equal protection first must plausibly of an impermissible Arlington allege intentional classification
claim, the plaintiffs on the basis See Village of
discrimination
such as religion. Housing Development
Heights v. Metropolitan
(1977).
Corp., 429 U.S. that a
252, 264-65
However,
a "plaintiff need not show ... solely, primarily,
government
decisionmaker
was motivated
or even
predominantly" classification
by the improper classification/ was "a motivating factor. "
so long as such
United States v. Yonkers, discrimination claims
96 F.3d 600/611-12
(2d Cir. 1996).
Intentional
can be proven by, inter alia, pointing dlEcriminatory classifications,
to laws that contain express law
"identify [ing] a facially neutral discriminatory
or policy that has been applied in an intentionally manner," or alleging
that a facially neutral statute had an adverse
by
effect and was motivated Oneonta, protection
221 F.3d 337
discriminatory
animus.
Bro~n v. City Of alleging an equal
(2d Cir. 2000).
A plaintiff
claim under one of these theories treatment
"generally need not situated The
plead or show the disparate individuals." exception
of other similarly
pyke v. Cuomo, 258 F.3d 107, 109 (2d Cir. 2001).
to this rule is for claims alleging
selective prosecution, branch in to
"because courts grant special deference the performance prosecute." of the core executive
to the executive
function of deciding whether
rd. (internal quotation marks omitted) .
18
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JUDGE RAKDFF
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Before
addressing
any of the other aspects an initial question
of the remaining have
equal protection the plaintiffs by religious Complaint
claims,
must be answered:
adequately
pled that the actions The Court concludes
here were motivated that the Amended actions
differences?
does not adequately
by religious
allege that the defendants' Indeed,
were motivated conceded during
differences.
the plaintiffs Complaint largely on a
oral argument
that their Amended
failed to include political Hasidim. allegations Amended
such allegations,
since it largely
centered
controversy See 8/31/11 raised
over who should be the leader of the Satmar transcript at 14-16. The Court cannot consider because the
for the first time at oral argument, must contain "sufficient
Complaint
factual matter,
accepted
as true, to 'state a claim to relief that is plausible lqbal, 129 S. Ct. at 1949 (quoting Twombly,
on its face.'ll These
550 U.S. at 570).'
claims are dismissed
with prejudice. Clause claims. The
The Court turns next to the Establishment First Amendment an establishment directs that "Congress
shall make no law respecting I. In Everson v.
of religion,"
u.s.
Const. Amend,
Board of Educ. of Ewing, that:
330 U.S. 1 (1947), the Supreme
Court stated
The establishment of religion clause of the First Amendment means at least this; Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or
7
In any event, noehing ~aised at oral argument these claims must be d~smissed.
changes the court's
conclusion that
19
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15:38
JUDGE RAKDFF
P.22/28
remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance.
Id. at 15-16 recently
(internal quotation the principle
marks omitted). of neutrality
The Supreme
Court
reaffirmed
set forth in Everson, Clause analysis.
describing
it as the "touchstone" Cty. v. ACLU, whether
of Establishment
See McCreary
545 U.S. 844, 860 government
(2005). the test
In determining Establishment espoused
action violates the familiar
Clause,
the Court applies
three-prong (1971). See
in Lemon v. Kurtzman,
403 U.S. 602, 612-13
Skoros v. City of New York, 437 F.3d 1, 16-17 the so-called be permissible Lemon test, \\astatute
(2d Cir. 2006). .
Under
or practice Clause, advance
, if it is to
under the Establishment [2] it must neither effect; and
[1] must have a religion an v. ACLU, in
secular purpose; its principal excessive
nor inhibit
or primary
[3] it must not foster County of Allegheny
entanglement
with religion."
492 U.S. 573/ 592
(1989) (citing Lemon, 403 U.S. at 613-14). claim that the Village its governmental violates affairs the are Yetev. In
Here, plaintiffs Establishment impermissibly support,
Clause because intertwined
with those of Congregation arguments! position
plaintiffs
make three principal holds a leadership
(1) that the
Mayor
Yetev,
of the Village
in Congregation rol@s" operate
and that his "dual religious
and governmental
20
NDV-28-2011
15:38
JUDGE RAKDFF
P.23/28
to establish
an official
faith because his religious beliefs
trump
his governmental Compl. ~ 344-47; of Congregation
role with respect to his actions as Mayor, see Am, (2) that all the other Village officials Yetev, and therefore are controlled
by
are members
the Grand Room Law
Rebbe's dictates, violates
id. at 26-27, 46; 3) that the Community
the Establishment
Clause in that it had the primary purpose The Court will address each of
and effect of advancing those claims in turn.s
religion.
As to thB first two claims regarding the Village
V.
overlapping
leadership
in
and the Congregation.
the Supreme Court held in McDaniel Clause does not
Paty, 435 U.S. 618 (1978), that the Establishment
bar an individual
from holding public offics simply because he is a Id. at 620 (striking down a Tennessee law
member of the Clergy. barring ministers offices); Rebbe board
ll ).
and priests
from holding certain political the Grand
see also Grumet, 512 U.S. at 699 (uunder McDaniel
[of Kiryas Joel] may run for. and serve on. his local school Therefore. these two claims are not enough to make out an
Establishment Finally,
Clause violation. as to the Community Room Law, plaintiffS concede that
the law is neutral
9
on its face, see Am. Campl. ~ 355. but they
In their response Co the defendants' motion to dismiss, plaintiffs also argue that "the boundaries of the village are drawn peculiarly to include only Satmars, the majority of whom are bound by the edicts of the Grand Rebbe and, therefore, exercise their franchise ~n a manner that advances the [congregation Yetev] agenda,H Pl_ Mem. at 34. As discussed above, the plaintiffs cannoc raise new claims in opposing a motion to dismiss. Moreover, this claim fails on the merits because the Supreme Court stated in Grumet that the Village's creation was not unconstitutional. 512 U.S. at 703 n.7 (plurality) i see also id. at 729 (Kennedy, J., concurring). 21
NOV-28-2011
16:38
JUDGE RAKOFF
P.24/28
contend
that "the village's
primary
purpose
in enacting
and enforcing religion
by
this law, and the law's primary requiring condition thereof "residential of obtaining
effect,U
is to advance
developers
to build religious
structures
as a
site plan approval,
or to pay cash in lieu the same." Id. ~ 352. to have
to be used for the purpose above, however,
of building
As discussed
plaintiffs
currently Room Law.
lack standing The plaintiffs
bring a claim related not adequately
to the Community
pled that they have suffered including
an injury as a result of or Lipa Deutsch, without to is
the law, and no developer, a party
Prag Realty
in this case. Therefore { this claim is dismissed Plaintiffs
prejudice. include parties.
are given leave to amend their complaint plead injury to the current
new partiss Accordingly,
or to adequately
all Establishment
Clause claims are dismissed to the Community Room
with prejudice, Law, which
except
for the claim relating without prejudice.
is dismissed
The Court turns now to the plaintiffs Land Use and Institutionalized 2000cc et seq. As discussed Persons Act above,
claim und@r
the Religious
§
(RLUIPA), 42 U.S.C.
this claim is barred by res this claim would violated fail on the
by
judicata. merits. refusing residence
Even if it were not, however, Plaintiffs allege
that the Village application
RLUIPA
to grant Bais Yoel's as a synagogue.
to use the Rebitzon's that: (1)
Defendants
argue in response
22
NDV-28-2011
15:38
JUDGE RAKDFF
P.2S/28
plaintiffs'
RLUIPA
claim is not yet ripe; and
(2) plaintiffs
fail to
state a RLUIPA The Second over a RLUIPA
claim. Circuit has held that ~to establish jurisdiction" of proving that to
claim, plaintiffs
"have the high burden position
we can look to a final, definitive assess precisely Milford Zoning marks
from a local authority Murphy v, New
how they can use their property." 402 F.3d 342,347 omitted).
Comm.,
(2d Cir. 2005) Thus, a RLUIPA
(internal claim process
quotation generally
and citation
is not ripe unless
and until the zoning and appeals has been rendered
has been exhausted
and a final decision See id.
by the
local zoning authority. Here, assuming failed
arguendo
that the claim is ripe, plaintiffs RLUIPA provides applicable a
have
to state a RLUIPA
claim on the merits.
right of action where
in three circumstances
allegedly
here a
42
a land use regulation burden"
or its implementation
(i) imposes
"substantial U.S.C.
§
on the plaintiff's
free exercise
of religion,
2000cc{a) (l), (ii) discriminates denomination, 42 U,S.C.
§
on the basis of religion (iii) 2000cc(b) (3). burden"
or
religious
2000cc(b) (2), or 42 U.S.C.
§
unreasonably
limits religious
assembly,
The plaintiffs this case because other locations
have failed to allege a "substantial
in uses
Bais Yoel has ready alternatives:
it presently
to worship
and there are many other locations may meet. See Fortress Bible
in the Church
Village
where the congregation
23
NDV-28-2011
15:39
JUDGE RAKDFF
P.25/28
v. Feiner, institution
734 F. Supp. 2d 409, 503 has a ready alternative burdened,n).
(S.D.N.Y, 2010) ("when an . . . its religious Moreover, exercise has
not been substantially the Village submit
plaintiffs'
claim that Bais Yoel to
discriminated
against Bais Yael by requiring as discussed above,
site plans
fails because,
it was the state
courts and not the Village from the village.9 sufficiently allege
that ordered the Amended
Bais Yoel to seek approval Complaint does not unreasonably because exist
Finally,
facts to show that the Village ability to worship freely
limits Bais Yoel's the plaintiffs within
in the Village, congregations reason
concede
that numerous
dissident
the Village.
Accordingly,
for this additional the RLUIPA
independent dismissed
of the bar of reS judicata,
claims
are again
with prejudice, last remaining
§
The Court now turns to the plaintiffs claim alleging conspiracy under Section
claim: 1985.
a In
1985, 42 U.S,C. 1985,
order to state a conspiracy must plead directly protection (1) a conspiracy;
claim under Section (2) for the purpose
"a plaintiff either
of depriving, of equal
or indirectly,
any person
or class of persons
of the laws, or of equal privileges (3) an act in furtherance is either injured
and immunities
under
the laws; and whereby deprived
of the conspiracYi or property States.
h
(4) or Mian v.
a person
in his person
of any right of the citizens
of the United
9 Again, the plaintiffs cannot use their opposition to the motion to dismiss to raise new claims or arguments, and thus the Court does not address the new arguments made in the plaintiffs' memorandum. See Pl. Mem. at 62-63.
24
NDV-28-2011
15:39
JUDGE RAKDFF
P.27/28
Donaldson,
1993)
Lufkin
& Jenrette
Sec. Corp.,
7 F.3d 1085, 1087
(2d Cir.
(per curiam).
In addition,
the conspiracy animus.
must have been See Thomas v. Roach,
motivated
by discriminatory
class-based
165 F.3d 137, 146
(2d Cir. 1999). allege a conspiracy claim under
§
In order to properly Complaint the minds, tacit, 110 must "provide
1985, the of or
some factual basis supporting entered end."
a meeting
such that defendants the unlawful
into an agreement,
express
to achieve
Webb v. Goard, omitted).
340 F.3d 105, here
I
(2nd Cir. 2003)
(internal citations
The complaint
fails to provide either explicit
any factual basis or tacit. Instead,
to support a meeting the complaint merely
of the minds includes a
canclusory sufficient
allegation to survive
that there was a conspiracy. the defendant's motion
This is not and this
to dismiss,
claim is therefor~
dismissed
with prejudice. plaintiffs' other arguments and finds
The Court has considered them without motions merit.
In light of the foregoing, are granted,
the defendants' with to the
to dismiss except
and all claims are dismissed Clause claim relating without
prejudice, Community
for the Establishment
Room Law.
That latter claim is dismissed one last chance to dismiss
prejudice
in order to give the plaintiffs adequately. Because the motions
to plead
that claim
all the claims are
25
NDV-28-2011
15:39
JUDGE RAKDFF
P.28/28
granted, punitive
defendants'
additional
motions
to strike the demands
for
damages and equitable for all remaining
relief are denied as moot.10 parties11 should convene a conference dates
Counsel
call with the Court on November 30, for any proposed Court is directed repleading
2011 at 2 p.m. to schedule
and further proceedings.
The Clerk of the 37, and 39 on the
to close item numbers 26, 29, 34,
docket of this case. SO ORDERED.
Dated: New York, NY November JE, 2011
~iMS.D.J.
It is worth noting, however, that municipalities and municipal officials sued in their official capacities are immune from punitive damages under Section 1983. See City of Newport v_ Fact Concerts, Inc., 453 U.S. 247, 27l (1981) ("considerations of history and policy do not support exposing a municipality to punitive damages for the bad-faith actions of its officials") i Ivani Contracting Corp. v. City ot N_ L, 103 F. 3d 257 262 (2d Cir. 1997) (officers sued in official capacity "enj oy the same immunity from punitive damages as the City").
10
I
11
Because defendants Congregation Yetev and Mr. Ekstein are named only in the Conspiracy Count, those parties are dismissed from the action with prejudice.
26
TOTAL P.28
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