NDV-28-2011

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

15:34

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)

NDV-28-2011

15:34

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

NDV-28-2011

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

NDV-28-2011

15:34

JUDGE RAKDFF

P.05/28

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

NDV-28-2011

15:35

JUDGE RAKDFF

P.05/28

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

NDV-28-2011

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

NDV-28-2011

15:35

JUDGE RAKDFF

P.08/28

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

NOV-28-2011

16:35

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

NDV-28-2011

15:35

JUDGE RAKDFF

P.1V28

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

NDV-28-2011

15:35

JUDGE RAKDFF

P.12/28

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

NDV-28-2011

15:35

JUDGE RAKDFF

P.13/28

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

NDV-28-2011

15:35

JUDGE RAKDFF

P.14/28

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

NDV-28-2011

15:35

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

NDV-28-2011

15:37

JUDGE RAKDFF

P.15/28

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

NDV-28-2011

15:37

JUDGE RAKDFF

P.17/28

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

NDV-28-2011

15:37

JUDGE RAKDFF

P.18/28

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

NDV-28-2011

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

15:37

JUDGE RAKDFF

P.20/28

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

NDV-28-2011

15:38

JUDGE RAKDFF

P.21/28

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

NDV-28-2011

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