Kiryas Joel Alliance et al v. Village of Kiryas Joel et al

Filing 60

OPINION AND ORDER. The various defendants (eleven in all) have filed five separate motions to dismiss. After full consideration of the parties' written submissions and oral arguments, the Court grants the motions. In light of the foregoing, the defendants' motions to dismiss are granted, and all claims are dismissed with prejudice, except for the Establishment Clause claim relating to the Community Room Law. That latter claim is dismissed without prejudice in order to give the plaintif fs one last chance to plead that claim adequately. Because the motions to dismiss all the claims are granted, defendants' additional motions to strike the demands for punitive damages and equitable relief are denied as moot. Counsel for all rema ining parties should convene a conference call with the Court on November 30, 2011 at 2:00 p.m. to schedule dates for any proposed repleading and further proceedings. The Clerk of the Court is directed to close item numbers 26, 29, 34, 37, and 39 on the docket of this case, and as further set forth. (Signed by Judge Jed S. Rakoff on 11/28/2011) (rjm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

----- x
KIRYAS JOEL ALLIANCE, et al.,
11 Civ. 3982 (JSR)
Plaintiffs,
OPINION AND ORDER
-v-

VILLAGE OF KIRYAS JOEL, et al.,
Defendant.

JED S. RAKOFF, U.S.D.J.

Plaintiffs, members of a "dissident" population wi

defendant

Village of Kiryas Joel (the "Village"), bring this action alleging
that the Village is a "theocracy," the affairs of which are so
"inherently infused by, and entangled, with religion" that its "very
existence" violates the Establishment Clause of the First Amendment.
See Amended Complaint ("Am. Compl.")

~

1.

In particular, plaintiffs

allege that the Village is subject to the dictates of defendant
Congregation Yetev Lev D' Satmar of Kiryas Joel ("Congregation
Yetev").

Moreover, plaintiffs allege that a law requiring all

buildings to have a "community room"

(the "Community Room Law")

violates the Establishment Clause because the purpose and effect of
the law are to promote religion.

Plaintiffs also allege that they

have been discriminated against and repressed by the Village on the
basis of their dissident views in a variety of ways, including:
1

excess municipal fees,

reduced police protection, and disparate

enforcement of public speech and zoning ordinances.
On the bases of these allegations, the Amended Complaint asserts
five claims: Violation of the Equal Protection Clausej Conspiracy to
Violate the Equal Protection Clausej Violation of the Free Exercise
Clausej Violation of the Establishment Clause; Violation of the
Religious Land Use and Institutionalized Persons Act ("RLUIPA/I), 42
U.S.C.

§

2000cc et s

The various defendants (eleven in all) have filed five separate
motions to dismiss.

After full consideration of the part

s' written

submissions and oral arguments, the Court grants the motions. 1

As a

result, all claims are dismissed with prejudice, except for the
Establishment Clause claim relat

to the Community Room Law.

This

latter claim is dismissed without prejudice to plaintiffs' filing a
Second Amended complaint that attempts to cure the deficiencies
identified herein.
For purposes of a motion to dismiss, the Court "accept[s] all
well-pleaded allegations in the complaint as true [and] draw[s] all
reasonable inferences in the plaintiff's favor./I

S.E.C. v. Gabelli,

653 F.3d 49 (2d Cir. 2011) (quoting Operating Local 649

Annu~ty

Trust

By stipulation dated August 30, 2011, plaintiffs voluntarily dismissed the New
York Secretary of State from the action. Plaintiffs also voluntarily withdrew their
"official capacity" claims against defendants Reisman, Goldstein, Freund, Landau,
and Weider.
Plaintiff's Memorandum of Law in Opposition to Defendant's Motion to
Dismiss ("Pl. 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

Fund v. Smith Barney Fund Mgmt. LLC, 595 F.3d 86, 91 (2d Cir. 2010)).
The pertinent allegations, taken from the Amended Complaint, from
documents express

referenced in that complaint, and from materials
notice, are as

the public record that are subject to judic
follows:

The Village of Kiryas Joel is an enclave located within the Town
of Monroe in Orange County, New York.

It was incorporated as a

municipality in 1977 by the late Grand Rebbe of Satmar Hasidism, Joel
Teitelbaum.

Am. Compl.

~~

39-41.

Although the Village was created

as an enclave for the Satmar Hasidim and remains populated almost
exclusively by followers of Satmar Hasidism, a significant rift
exists between two Satmar factions in the Village, namely the members
of the Village's main congregation and the so-called "dissident"
population.

The schism primarily stems from a dispute over who

should be the proper leader of the Satmar Hasidim.
45, 48-59.

Id.

~~

2,

41, 44­

The dissidents do not "approve of" the leadership of the

current Grand Rebbe, Aron Teitelbaum.

Id.

~

48.

Instead, many of

the dissidents believe that Aron's brother Zalman should be "running
[Congregation Yetev]

instead of Aaron."

Id.

~

49. The Village has

approximately 20,000 residents; roughly 8,000 of those residents
share the plaintiffs'

"dissident" views.

Id.

~~

11-20, 41.

Defendant Abraham Weider is the Village's Mayori he also serves
as "Rosh H'Khal" or "Head of the Congregation" of Congregation Yetev.

3

Id. "

26-27, 30, 53.

Moreover,

"every other elected and appointed

village official" is allegedly a member of Congregation Yetev.
Plaintiffs' Memorandum of Law in Opposition to Defendants' Motion to
Dismiss ("Pl. Mem.") at 4.

Defendant Moses Witriol, also a member of

Congregation Yetev, is the Director of the Village of Kiryas Joel
Department of Public Safety.

Am. Compl. , 190.

The rift between the two Satmar factions has spawned repeated
litigation in state and federal courts over the past two decades.
See, e.g., Board of Educ. of
Grumet, 512 U.S. 687 (1994).

The Second Circuit has noted that some

of the dissidents' previous allegations, are "deeply troubling in
that, if true,

[they] describe[] a town in which public institutions

are routinely being used as instruments of the dominant religious
group. "

Waldman v. Vil

Joel, 207 F.3d 105, 107 (2d

Cir.2000).
The Amended Complaint further contends that the Village violated
both plaintiffs' constitutional rights and their rights under RLUIPA
by "thwarting" dissident congregation

s Yoel's attempts to use a

piece of residential property as a synagogue (the "Property,")
Compl. "

165, 173.

Am.

The Property is an apartment annexed to

Congregation Yetev's Grand Synagogue.

It was originally built in

1975 to house the late Grand Rabbi Joel Teitelbaum and his spouse,
Fe

Teitelbaum (or the "Rebitzon").

4

Feige continued to live in the

apartment until her death in 2001.

Before her death, however, and

after Joel Teitelbaum's death in 1979, she conveyed her interest in
the Property to Bais Yoel.

tev Lev D'Satmar

See

v. 26 Adar N.B. Corp., 192 A.D.2d 501, 596 N.Y.S.2d 435
1993) (per curiam)

Inc.

(2d Dep't.

(upholding Feige's conveyance in a suit brought by

Congregation Yetev to invalidate it).
conveying a small wing of a house.

The transfer was akin to

In other words, Bais Yoel owns a

"footprint H of real property within the Grand Synagogue's grounds
it does not own any of its surrounding lands nor any easements to
accommodate parking access and utilities thereon.

See id.

After the Rebitzon's death, Bais Yoel began using the Property
to hold religious services.

See Am. Compl.

~~

167-69.

By 2004, the

Property was operating as a large-scale house of worship, with more
than 300 persons vis
Decl. Ex. B,
(unreported).

ing the Property on a daily basis.

See Gimbel

("Bais Yael I Decision,u dated Jan. 24, 2008)
However, after a trial in New York Supreme Court, that

court held that the Property could only be used for residential
purposes unless Bais Yoel applied for and received municipal approval
to use it for religious purposes. See id.

The court further held

that any municipal approval of the residence for religious services
would require Congregation Yetev's permission, as well as
Congregation Yetev's agreement to expand the scope of ingress,
egress, and utility easements appurtenant to the property -- all of

5

which were then limited to residential use.

rd. at 5 6.

The

decision was affirmed on appeal, with modifications not material to
this litigation. See Bais Yael Ohel :l"eige v. <:;()ngo Yetev Lev D'Satmar
_o~f~=_. ~__~~~~~_,

After

885 N.Y.S.2d 741 (2d Dep't 2009)

(per curiam).

s Yoel I was decided, plaintiffs continued to use the

Property for religious services.

Accordingly, by order dated

November 30, 2009, Justice Owen of New York State Supreme Court held
Bais Yoel, Zalman Waldman, Bernard Tyrnauer, and Meyer Deutsch in
contempt for violating the

al court's judgment and continuing to

use the Property "as a non conforming, unlawful house of worship
without municipal approval, and
explain said contempt."
2009,

ling]

to satisfactorily excuse or

Gimbel Decl. Ex. C, Order dated Nov. 30,

Bais Yoel I "Contempt Order").

The Contempt Order stated that

"plaintiffs' blatant disregard for the judicial system is so evident
at this point that the Court believes the only appropriate remedy is
to order full closure of the subject premises and, absent compliance,
incarceration of those individuals responsible."

Id. at 3.

The

Order was affirmed on appeal. See -------------------Bais Yael Ohel Fe

.....~--------~~------

_L_e_v D ' S_a t_m_a_r_o_f _K_i.. . ..L-'--_ _'---'---'---_ _-=--, 910 N. Y . S . 2 d 174, 175 ( 2 d Dep' t
____ __
_
2010) (per curiam) .
Subsequently, plaintiffs filed a second state court action
against Congregation Yetev and the Village, Bais Yael Ohel Fe
Congo Yetev Lev D'Satmar of

~iryas

Joel, No. 5655-2010 (N.Y. Sup.

6

Ct.) ("Bais Yoel II").
filed,

Less than two weeks

ter Bais Yoel II was

Congregation Yetev began a construction project to expand and

repave the parking lot outside its Grand Synagogue.
~~

186 98.

This "construction bl

See Am. Compl.

z ripped up the cartilage of the

property, including a historic stone walkway, tore apart fencing,
destroyed part of the porch and other structures and ripped down
utility wires running to the building."
183.

Pl. Mem. at 53; Am. Compl. ~

Officers of the KJPS were present for the

arrested several dissidents, including p

iff Waldman, for

attempting to obstruct the construction project.
98.

ration and

Am. Compl.

~~

186­

Plaintiffs immediately brought the construction project to the

state court's attention, and successfully brought allegations related
to the "blitz" into that litigation.

See Crowley Decl. Ex. I at 20

(transcript of hearing on June 7{ 2010).

The Court granted the

plaintiffs' request for a Temporary Restraining Order prevent
further work on the construction project; the Second Department,
however, lifted the TRO on appeal.
0,

See Crowley Decl. Exs I, L, M, N,

P, R, S & T.

The Amended Complaint

so alleges that the Village selectively

enforces public speech ordinances so as to promote Congregation Yetev
and discriminate against dissident views.
28.

Am. Compl.

~~

100-60, 323­

On at least two occasions, Moses Witriol and the KJPS allegedly

refused to intervene to prevent Congregation Yetev from playing loud

7

Id. ~~

music at night through loudspeakers at its Grand Synagogue.
105 111.
ordinance.

legedly violated a local noise

This loud music playing
Id.

On several occasions, Witriol also

~escorted

a

truck, which was broadcasting 'anti-dissident' announcements, around
the Village."

Id.

~

128.

During the same time period, Joel

eberman, a non-party dissident, was

~prohibited

from announcing a

protest" -- by driving a truck with loudspeakers -- regarding
Spanish government's treatment of Jewish graves in Spain."

~the

Id.

~

150.
Moreover, in November 2009, the Village denied plaintiff
Tennenbaum and a group of dissidents a permit to hold a protest
against Grand Rebbe Aron Teitelbaum in front of Teitelbaum's house.
Id.

~~

138-49.

The Village denied Tennenbaum's permit application

because, it said, the house was on a "dead-end street which also
houses the only ambulance service in the Village, which is dependent
on open ingress and egress to serve the needs of the Village."
148.

Id.

Instead, the Village proposed that Tennenbaum "consider

locations where your groups has [sic] already held past protests:
along Forest or Bakertown Roads or even Acres Road. Your group has
had many protests exercising its First Amendment rights along these
locations without any interference from the Village."

Id.

Next, the Amended Complaint alleges that the Kiryas Joel
Department of Public Safety

(~KJPS"),

8

the Village's law enforcement

~

arm, and Witriol, the Director of the KJPS, have "se

ctively­

enforced" the law so as to "repress the dissidents."

Am. Compl. ,

229; see id.

~'225-34.

In support, plaintiffs allege that KJPS

permitted schoolchildren from the United Talmudical Academy ("UTA"),
the Village's private religious school, which is affil

ed with

Congregation Yetev, to "blanket the Village streets with hostile and
harassing leaflets that contain the names, pictures and phone numbers
of 'dissidents' who have married, or intend to marry .

. without

the Grand Rebbe's approvaL"

,~

PI. Mem. at 51; Am. CompL

292-32l.

The dissidents went out themselves at night to clean up the leaflets,
because they were not cleaned up by the KJPS.

Id., 307.

In

response to this state of affairs, some dissidents "threw garbage on
the streets to coerce the Village to clean everything up."
317.

Id.,

Plaintiff David Wolner was accused of being one of the garbage­

throwers, an allegation which he denies; he was later charged with
disorderly conduct.
In addition,

Id. "

318-20.

"mobs of hundreds of UTA boys" assaulted two

dissidents

plaintiff Isaac Srugo and non-party Rafael Rabinowitz.

Id. , 236.

Plaintiffs allege that both incidents were caused by the

KJPS because the UTA students "knew that KJPS, as an instrumentality
of the [Congregation Yetev] -run Village government, supported their
missions" and so would not intervene to protect dissidents.
Mem. at 50.

See Pl.

plaintiff Kiryas Joel Alliance has allegedly been forced

9

to protect its members because of KJPS's

to hire private securi

refusal to protect them from such harassment.

Am. Compl. ~ 241.

Plaintiffs also allege that the Village, through its Community
Room Law, uses its governmental authority to divert funds and
resources to Congregation Yetev.

The Village enacted the Community

Room Law in 2007; it requires all building developers to construct a
community room as a condition of obtaining Planning Board approval
for new residential construction.

Id.

~~

348 49.

The law imposes

strict conditions on the operation of community rooms and requires
developers to submit an "operational plan,H that ensures "the
perpetual continuing availability and use of the community room or
rooms for recreational, community, charitable, civic or other uses. H
Id.

~

Under the law

350.

1

if a developer finds it unfeasible to

build a community room, he must pay a fee of "not less than $5 000
1

unit" to
fund

ll

Vil

1

which is deposited into a "community room

used solely for the provision of community rooms in the

Village.

Id.

~

351.

With one exception, all of the community rooms are allegedly
used as synagogues and run by Congregation Yetev.
The exception is a communi
dissident developer.

Id.

~~

352, 355.

room which was recently built by a

The Village initially refused to grant a

Certificate of Occupancy to its builder, non party Prag Realty, which
is managed by non-party Lipa Deutsch, and sought to require the

10

developer to pay the $5,000 per unit fee.

Id. ~~ 357-62.

The

Village asserted that it assessed the fee because the community room
did not meet the legal specifications for such rooms

I

but plaintiffs

allege that the fee was assessed because Prag Realty did not intend
to use the community room as a synagogue.

Id.

After Prag Realty

retained counsel to dispute the Village/s fee determination, however,
the Village reversed its position and granted Prag
Certificate of Occupancy without charging a fee.

ty the
Id.

~

Against the background of these diverse allegations
turns to a consideration of plaintiffs' claims.
a complaint must include "suff

362.
l

the Court

Under Rule 12(b} (6),

ient factual matter, accepted as

true, to 'state a claim to relief that is plausible on its face.
Ashcroft

--------~......

----~~-

Iff

, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 570 (2007).

"The plausibility

standard is not akin to a 'probability requirement,' but it asks for
more than a sheer possibility that a defendant has acted unlawfully."
Id. "A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged."
Id.

Moreover, the Court cannot consider

legations that the

plaintiffs raise for the first time in their brief opposing the
motion to dismiss because "it is axiomatic that a complaint may not

11

be amended by the briefs in opposition to a motion to dismiss."
Wright v. Ernst & young LLP, 152 F.3d 169, 178 (2d

. 1998)

Before addressing the merits of plaintiffs' claims[ the Court
must consider two threshold issues: res judicata and standing.

As

for res judicata[ the Village contends that those claims which are
based on the Village's refusal to allow Bais Yoel to use the Property
as a synagogue, are barred by operation of res judicata.
applies where "( 1)

Under New York and federal law,

the previous action involved an adjudication on the merits;

(2) the

previous action involved the plaintiffs or those in privity with
them; and (3) the claims asserted in the subsequent action were, or
could have been, raised in the prior action."
Dep't of Corr., 214 F.3d 275,285
Thus

I

Monahan v. N.Y.C.

(2d Cir. 2000)

(citations omitted)

2

resmjudicata "prevents a party from litigating any issue or

defense that could have been

sed or decided in a previous suit,

even if the issue or defense was not actual
972 F.2d 36, 38

raised or decided.

H

(2d Cir. 1992).

In evaluating whether claims are barred by

-----"'----­

, the

Court must determine whether the claims involve the same transaction.
Woods, 972 F.2d at 38 39.

The Court, therefore, looks primarily to

2 A federal court "must give to a state court judgment the
as would be given that judgment under the law of the State
was rendered."
v.
(1984). Thus, the prec
governed by New York law.
However, "[tlhere appears
difference between New York preclusion law and federal
Freeman, 266 F.3d 78, 91 n.14 (2d Cir. 2001), and thus the
will not be discussed separately.

12

same preclusive effect
in which the judgment
465 U.S. 75, 81
State actions is
no significant
ion law."
Pike v.
respective standards

the facts that underlie the cause of action, as opposed to the legal
Id.

theory framing the complaint.

Moreover, whi

"[i]t is true

that res judicata will not bar a suit based upon legally significant
self based

acts occurring after the filing of a prior suit that was

act,'l nonetheless, where a plaintiff asserts in a later

upon earl

action "nothing more than additional instances of what was previously
asserted," the actions arise from the same transaction.

Waldman, 207

F.3d at 113.
Plaintiffs do not dispute that the first two requirements of res
udicata are presented here, because
final judgments on
privies.

prior cases resulted in

merits and involved the same parties or their

See Pl. Mem. at 13-18.

claims alleged here do not

However, they contend that the

se from the same transactions that were

at issue in the previous cases.

Specifically, plaintiffs argue that

"two independent fact patterns" on which Bais Yoel's claims in the
instant action are predicated were not raised in the prior
litigation:

(1)

the "construction blitz," and (2)

the Village's

failure to grant municipal approval for the Property to be used as a
synagogue after Justice Owen's decision in Bais Yoel 1. 3

Both "fact

patterns," however, were significant issues in Bais Yoel II.
fact,

In

the plaintiffs obtained a TRO against the construction work in

3 Plaintiffs also raise some new facts
in their opposition to the motion to
dismiss.
See, e.g:., Pl. Mem. 60 (discussing the ZBA's inaction). As discussed
above, the Court cannot consider facts not raised in the Complaint.

13

Bais Yoel 11.4 Moreover, while the relief plaintiffs seek in this
case is different from the easement they sought in the state court,
that does not affect the Court's res judicata analysis.
207 F.3d at 110-12 (a plaintiff ftcannot avoid the ef
judicata by 'splitting' his claim into various
different I

See Waldman,
ts of res

ts, based on

I theories," or by requesting different forms of

relief) .
Accordingly, res judicata bars plaintiff

s Yoel's claims

regarding the Village's allegedly discriminatory application of
zoning ordinances.

ffs' Equal Protection Clause

Insofar as pI

and Establishment Clause cl

are based on application of the

zoning ordinances to the Property, those claims are dismissed with
prejudice.

And since plaintiffs' Free Exercise Clause and RLUIPA 5

claims are based ent

lyon

application of zoning ordinances to

the Property, therefore, those claims are also dismissed, in

ir

entirety, with prejudice.
As for standing, several of plaintiffs' allegations relate to
inj

es allegedly suffered by non parties, and therefore must be

dismissed for lack of standing.
demonstrate (1)

To have standing, a plaintiff must

ftspecific, concrete" facts demonstrating that the

challenged practices directly harmed him or her by causing (2) a
distinct and palpable "injury-in-fact" to a legally cognizable
As discussed above, the grant of that TRO was overturned on appeal.
5

As discussed above, plaintiffs received a full and fair adjudication in state

court on the application of the zoning ordinances.

14

interest that is (3) fairly traceable to defendants' conduct and (4)
capable of being redressed by a favorable court decision.
v. Defenders of wildlife, 504 U.S. 555, 560 (1992).

Moreover,

standing must be established for each claim asserted.
Casey, 518 U.S. 343, 358 n.6

Furthermore,

(1996).

See

See Lewis v.

"[i]t is

axiomatic that the judicial power conferred by Art. III may not be
exercised unless the plaintiff shows that he personally has suffered
some actual or threatened injury as a result of the putatively
illegal conduct of the defendant.fl
999

(1982).

Blum v. Yaret

I

457 U.S.

991,

Therefore, as the supreme Court held in Blum:

[i]t 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
litigating conduct
of another kind, although similar, to which he has not been
subject.
rd.

(emphasis in original) .
Here, the Amended Complaint asserts factual allegations relating

to harms allegedly suffered by several non-parties including:
municipal fees charged for garbage removal levied against non-parties
Keren Chasanim and Congregation

Livov; the KJPS' enforcement of

Village noise ordinances against non-party Joel Lieberman; the KJPS'
alleged

lure to protect non-party Rafael Rabinowitz from attack by

groups of UTA schoolchildren; the Village's alleged failure to grant
property tax exemptions to non-parties Samuel Eisenberg and
Congregation TA; Congregation Yetev's refusal to allow the non party
15

family to bury their relative Eziel Pearlstein in the main

Pearlste

leged

Congregation Yetev cemetery in the Village; the Village's

wrongful termination of non-party Lawrence Rossini from his position
as a building inspector; and the Village's improper delay in granting
non-parties Prag Realty and Lipa Deutsch Certificates of Occupancy
for a resident

development based on their plans to use a community

room for non-religious purposes.
The Court finds unpersuasive plaintiffs
Kiryas Joel Alliance ("KJA

fI
)

l

argument that the

may assert, in a representative

capacitYI claims based on harms suffered by its members who are non­
part

s.

As the Second Circuit held in Nnebe v. Daus, 644 F.3d 147,

(2d Cir. 2011)

"an organization does not have standing to assert the

rights of its members in a case brought under 42 U.S.C.
because

§

§

1983"

1983 rights are "personal to those" that are injured.

Id.

at 156.
Of course, an organization may bring suit on its own behalf "so
long as it can independently satisfy the requirements of Article III
standing as enumerated in Lujan."

Id.; see also N.Y.
1 Liberties
------------------------

Union v. N.Y. City Transit Auth., 652 F.3d 247, 255 (2d
(organization has standing to sue when it al
rights as an organization).

s injuries to its own

Therefore, KJA's claim that it had to

divert resources from its other activities to prov
the dissidents .

r. 2011)

"security to

. because KJPS was not properly attending to

16

them,H Pl. Mem. at 26, does provide standing as to that claim alone.
See Nnebe, 644 F.3d at 156 57 (diversion of resources from an
organization's main activit
that organization).

s is a harm that confers standing on

Therefore, of the claims discussed above, KJA

has standing only to assert claims related to the KJPS' alleged
lure to protect non-party Rafael Rabinowitz from attack by groups
of UTA schoolchildren.

All of the other claims discussed above are

dismissed with prejudice for want of standing, with the exception of
the Community Room Law claim, which is dismissed without prejudice.
Now that the Court has limited plaintiffs' claims to those for
which they have standing and those that are not barred by res
udicata, the Court turns to a consideration of the merits of the
remaining claims.

The plaintiffs assert three separate violations of

the Equal Protection Clause.

6

First, plaintiffs allege that

defendants "facilitate [Congregation Yetev]'s blatant violations of .
. public speech laws while at the same time requiring 'dissidents'
to strictly comply with them." pl. Mem. at 47. Second, plaintiffs
al

that plaintiffs Waldman and Wolner were falsely arrested and

charged with crimes they did not commit.
37.

Am. Compl.

~~

317-21, 333­

Third, plaintiffs allege that the KJPS discriminatorily refuses

to protect dissidents from violence perpetrated by UTA children.
6 Plaintiffs also brought two other
protection claims, which are
dismissed for the other reasons discussed above.
The first, relat
to zoning
restrictions on the Bais Yoel 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 standing.

17

In order to bring an equal protection claim, the plaintiffs
f

t must plausibly allege intentional discrimination on the basis

of an impermissible classification such as religion.

See Village of

Arlington Heights v. Metropolitan HousingmDe,:,elopment Corp., 429 U.S.
252, 264 65 (1977).

However, a "plaintiff need not show.

. that a

government decisionmaker was motivated solely, primarily, or even
predominantly" by the improper classification, so long as such
classification was "a motivating factor."
96 F.3d 600,611 12

(2d Cir. 1996).

united States v. Yonkers,

Intentional discrimination claims

can be proven by, inter alia, pointing to laws that contain express
discriminatory classifications,

"identify [ing] a facially neutral law

or policy that has been applied in an intentionally discriminatory
manner,· or alleging that a facially neutral statute had an adverse
effect and was motivated by discriminatory animus. Brown v. City of
Oneonta, 221 F.3d 337 (2d Cir. 2000).

A plaintiff alleging an equal

protection claim under one of these theories "generally need not
plead or show the disparate treatment of other similarly situated
individuals./I

RYl<.e v. Cuomo, 258 F.3d 107, 109 (2d

2001).

The

exception to this rule is for claims alleging selective prosecution,
"because courts grant special deference to the executive branch in
the performance of the core executive function of deciding whether to
prosecute."

Id.

(internal quotation marks omitted).

18

Before addressing any of the other aspects of the remaining
equal protection claims, an initial question must be answered: have
actions here were motivated

the plaintiffs adequately pled that
by religious differences?

The Court concludes that the Amended

Complaint does not adequately allege that the defendants' actions
were motivated by religious differences.

Indeed, the plaintiffs

conceded during oral argument that their Amended Complaint large
failed to include such allegations, since it largely centered on a
political controversy over who should be the leader of the Satmar
Hasidim.

See 8/31/11 transcript at 14-16. The Court cannot consider

allegations raised for the first time at oral argument, because the
Amended Complaint must contain "sufficient factual matter, accepted
as true, to 'state a claim to reI

f that is plausible on its face.'ff

Iqbal, 129 S. Ct. at 1949 (quoting r:['Vv'()mb:i.:Y,

550 U.S. at 570).7

These

claims are dismissed with prejudice.
The Court turns next to the Establishment Clause claims.
First Amendment directs that "Congress shall make no law respecting
an establishment of religion."

U.S. Const. Amend. 1.

In Everson v.

Board of Educ. of Ewing, 330 U.S. 1 (1947), the Supreme Court stated
that:
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
In any event, nothing raised at oral argument changes the Court's conclusion that
these claims must be dismissed.

19

remain away from church against his will or force him to profess
a belief or disbelief in any religion. No person can be punished
entertaining or professing religious bel fs or disbeliefs,
for church attendance or non-attendance.

Id. at 15-16 (internal quotation marks omitted).

The Supreme Court

recently reaffirmed the principle of neutrality set forth in Everson,
describing it as the "touchstone" of Establishment Clause analysis.
See McCreary Cty. v. ACLU, 545 U.S. 844, 860 (2005).
In determining whether government action violates the
Establishment Clause, the Court applies the familiar three-prong test
espoused in Lemon v. Kurtzman, 403 U.S. 602, 612 13 (1971).
~

______

~

__

~-L____

New York, 437 F.3d I, 16-17 (2d Cir. 2006).

Under

_ _ _ _ _ _ _ __ _

the so-called Lemon test,

"a statute or practice .

be permissible under the Establishment Clause,
secular purposej

See

[2)

, if it is to

[1) must have a

it must neither advance nor inhibit religion in

its principal or primary effectj and [3)
excessive entanglement with religion."

it must not foster an
County of AlleghE:ll.Y v. ACLU,

492 U.S. 573, 592 (1989) (citing Lemon, 403 U.S. at 613 14).
Here, plaintiffs claim that the Village violates the
Establishment Clause because its governmental affairs are
impermissibly intertwined with those of Congregation Yetev.

In

support, plaintiffs make three principal arguments:

(I)

that the

Mayor of the Village holds a leadership position

Congregation

Yetev, and that his "dual religious and governmental roles" operate

20

to establish an official faith because his religious beliefs trump
his governmental ro
Compl.

~

344 47;

with respect to his actions as Mayor, see Am.

(2) that all the other Village officials are members

of Congregation Yetev, and therefore are controlled by the Grand
Rebbe's dictates, id. at 26-27, 46; 3) that the Community Room Law
violates the Establishment Clause in that it had the primary purpose
and effect of advancing religion.

The Court will address each of

those claims in turn. s
As to the first two claims regarding overlapping leadership in
the Village and the Congregation, the Supreme Court held in McDaniel
v. Paty, 435 U.S. 618 (1978), that the Establishment Clause does not
bar an individual from holding public off
member of the Clergy.

simply because he is a

Id. at 620 (striking down a Tennessee law

barring ministers and priests from holding certain political
off

s); see also Grumet, 512 U.S. at 699 ("under McDaniel the Grand

Rebbe [of Kiryas Joel] may run for, and serve on, his local school
board"). Therefore, these two claims are not enough to make out an
Establishment Clause violation.
Finally, as to the Community Room Law, plaintiffs concede that
the law is neutral on its face, see Am. Compl.

~

355, but they

In their response to the defendants' motion to dismiss, plaintiffs also argue
that "the boundaries of the Village are drawn peculiarly to include only Satmars,
the maj
of whom are bound by the edicts of the Grand Rebbe and, therefore,
exercise their franchise in a manner that advances the [Congregation Yetevl
agenda," Pl. Mem. at 34. As discussed above, the plaintiffs cannot raise new
claims in opposing a motion to dismiss.
Moreover, this claim fails on the merits
because the Supreme Court stated in
that the Village's creation was not
unconstitutional.
512 U.S. at 703 n.7 (plurality); see also id. at 729 (Kennedy,
J., concurring).
8

21

contend that "the Village's primary purpose in enacting and enforcing
this law. and the law's primary effect," is to advance religion by
requiring "residential developers to build religious structures as a
condition of obtaining site plan approval, or to pay cash in lieu
thereof to be used for the purpose of building the same."

Id. ~ 352.

As discussed above, however, plaintiffs currently lack standing to
bring a claim related to the Community Room Law.

The plaintiffs have

not adequately pled that they have suffered an injury as a result of
the law, and no developer, including Prag Realty or Lipa Deutsch, is
a party in this case. Therefore, this claim is dismissed without
prejudice.

Plaintiffs are given leave to amend their complaint to

include new part

or to adequately plead injury to the current

parties. Accordingly, all Establishment Clause claims are dismissed
with

udice, except for the claim relating to the Community Room

Law, which is dismissed without

udice.

The Court turns now to the plaintiffs claim under the Religious
Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C.
2000cc
judicata.
merits.
re

§

As discussed above, this claim is barred by res
Even if it were not, however, this claim would fail on the
Plaintiffs allege that the Village violated RLUIPA by

ing to grant Bais Yoel's application to use the Rebitzon's

residence as a synagogue.

Defendants argue in response that:

22

(1)

plaintiffs' RLUIPA claim is not yet ripe; and (2) plaintiffs fail to
state a RLUIPA claim.
The Second Circuit has held that "to establish jurisdiction"
over a RLUIPA claim, plaintiffs "have the high burden of proving that
we can look to a final, definitive position from a local authority to
assess precisely how they can use their property./1 Mu!phy v. New
Milford
---------- ...----~-------

I

402 F.3d 342,347

(2d Cir. 2005)

quotation marks and citation omitted).

(internal

Thus, a RLUIPA claim

generally is not ripe unless and until the zoning and appeals process
has been exhausted and a final decision has been rendered by the
local zoning authority. See id.
Here, assuming arguendo that the claim is ripe, plaintiffs have
failed to state a RLUIPA claim on the merits.

RLUIPA provides a

right of action in three circumstances allegedly applicable here
where a land use regulation or its implementation (i)

imposes a

"substantial burden" on the plaintiff's free exercise of religion, 42
U.S.C.

§

2000cc(a)

(1),

(ii) discriminates on the basis of religion or

religious denomination, 42 U.S.C.

§

2000cc(b) (2), or (iii)

unreasonably limits religious assembly, 42 U. S. C.

§

2000cc (b)

(3) .

The plaintiffs have failed to allege a "substantial burden" in
this case because Bais Yoel has ready alternatives: it

sently uses

other locations to worship and there are many other locations in the
Village where the congregation may meet.

23

See Fortress Bible Church

v. Feiner, 734 F. Supp. 2d 409, 503
institution has a ready alternative

(S.D.N.Y. 2010) ("when an
. its religious exercise has

not been substantially burdened.")

Moreover, plaintiffs' claim that

the Village discriminated against

s Yoel by requiring Bais Yoel to

submit site plans fails because, as discussed above,

it was the state

courts and not the Village that ordered Bais Yoel to seek approval
from the Village.
suff

ient

9

Finally, the Amended Complaint does not

allege facts to show that the Village unreasonably

limits Bais Yoel's ability to worship freely in the Village, because
the plaintiffs concede that numerous dissident congregations exist
within the

llage.

Accordingly, for this additional reason

independent of the bar of res judicata, the RLUIPA claims are again
dismissed with prejudice.
The Court now turns to the plaintiffs last remaining claim: a
claim alleging conspiracy under Section 1985, 42 U.S.C.
order to state a conspiracy claim under Section 1985,
must plead (1) a conspiracy;

§

1985.

In

"a plaintiff

(2) for the purpose of depriving, either

directly or indirectly, any person or class of persons of equal
protection of the laws, or of equal privileges and immunit
the laws; and (3) an act

furtherance of the conspiracy;

sunder
(4)

whereby a person is either injured in his person or property or
deprived of any right of the citizens of the United States."

Mian v.

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.
9

24

Lufkin & Jenrette Sec.

Donaldson

., 7 F.3d 1085, 1087 (2d Cir.

~------~~--------------------------------~

1993)

(per curiam) .

In addition, the conspiracy must have been
See Thomas v. Roach,

motivated by discriminatory class-based animus.
165 F.3d 137, 146 (2d Cir. 1999).

In order to properly allege a conspiracy claim under

§

1985, the

Complaint must "provide some factual basis supporting a meeting of
the minds, such that defendants entered into an agreement, express or
tacit, to achieve the unlawful end."
110 (2nd Cir. 2003)

Webb v. Goord, 340 F.3d lOS,

(internal citations omitted) .

The complaint here

fails to provide any factual basis to support a meeting of the minds,
either explicit or tacit.

Instead, the complaint merely includes a

conclusory allegation that there was a conspiracy.

This is not

sufficient to survive the defendant's motion to dismiss, and this
claim

therefore dismissed with prejudice.
The Court has considered plaintiffs' other arguments and finds

them without merit.

In light

the foregoing,

the defendants'

motions to dismiss are granted, and all claims are dismissed with
prejudice, except for the Establishment Clause claim relating to the
Community Room Law.

That latter claim is dismissed without prejudice

in order to give the plaintiffs one last chance to plead that claim
adequately.

Because the motions to dismiss all the claims are

25

granted, defendants' additional motions to strike the demands for
punitive damages and equitable relief are denied as moot.
Counsel for

10

1 remaining parties 11 should convene a conference

call with the Court on November 30, 2011 at 2 p.m. to schedule dates
any proposed repleading and further proceedings. The Clerk of the
Court is directed to close item numbers 26, 29, 34, 37, and 39 on the
docket of this case.
SO ORDERED.

Dated: New York, NY
November~, 2011

It is worth noting, however, that municipalities and municipal officials sued in
their official capacities are immune from punitive damages under Section 1983. See
s Inc.
453 U.S. 247, 271 (1981) ("considerations
of history and
icy
not support exposing a municipality to punitive damages
for the bad-faith actions of its officials"); _I.v~a~n~i__~~~~___ ~~~~~~_.c.... ~L-~~~
...
~~, 103 F.3d 257,262
(2d Cir. 1997) (officers sued
same immunity from
ive damages as the City").
10

~~~~~~:~~c~~~~~~~~~:~···~~~

E
Because defendants Congregation Yetev and Mr. Ekstein are named only in the
Conspiracy Count, those
are dismissed from the action with prejudice.

26