Indig v. Vill. of Pomona, 18 CV 10204 (VB)

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Writing for the CourtBriccetti, J.
Docket Number18 CV 10204 (VB)
Decision Date18 November 2019


18 CV 10204 (VB)


November 18, 2019


Briccetti, J.:

Plaintiffs Samuel Indig, Leah Indig, Meir Kahana, Robert Klein, and Naftali Klein bring this action against defendants The Village of Pomona (the "Village"), Brett Yagel, Louis Zummo, Leon Harris, and Doris Ulman, claiming defendants violated their rights under the United States Constitution; the Fair Housing Act ("FHA"); the New York State Constitution; and New York Civil Rights Law § 40-c, by discriminating against plaintiffs on account of their religious affiliation. Specifically, plaintiffs claim defendants have used the Village codes to target Orthodox Jewish residents of the Village. Accordingly, plaintiffs seek damages and injunctive relief.

Before the Court is defendants' motion to dismiss the amended complaint pursuant to Rules 12(b)(1) and 12(b)(6).1 (Doc. #82).

For the reasons set forth below, the motion to dismiss is GRANTED IN PART and DENIED IN PART.

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The Court has subject matter jurisdiction under 28 U.S.C. § 1331.


For the purpose of ruling on the motion to dismiss, the Court accepts as true all well-pleaded factual allegations in the amended complaint, and draws all reasonable inferences in plaintiffs' favor, as summarized below.

I. The Plaintiffs

The plaintiffs are religious Jews who reside in or own property in the Village. Each plaintiff claims to have suffered due to defendants' actions to enforce the municipal codes. Plaintiffs allege defendants' conduct is part of a broader campaign intentionally to discriminate against Orthodox Jewish residents of the Village.

A. Samuel and Leah Indig

Samuel and Leah Indig purchased a home in the Village in 2015. The Indigs applied for a building permit to undertake grading work in their backyard, which required the use of a tractor. The plan, prepared by the Indigs' engineer, was approved. To get the tractor onto the Indigs' property, "it was necessary to create a dirt path to enable the tractor to reach the bottom of the hill." (Am. Compl. ¶ 72). Thereafter, defendant Building Inspector Louis Zummo issued a stop work order, asserting that the dirt path constituted a "road" which required a separate approval. (Am. Compl. ¶ 73). The Indigs appealed the stop work order to the Village zoning board. As the appeal was pending, the Indigs allege defendants intimidated and pressured the engineer and workers to cease work. They claim that, as a result of the stop work order, there is a "dangerously steep incline on their property," which limits the use of their backyard and creates a risk of mud slides and a "breeding ground for mosquitos and ticks." (Am. Compl.

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¶ 76). According to the Indigs, defendants' actions are part of "their agenda against Jewish residents" of the Village. (Am. Compl. ¶ 77).

According to defendants, there is a pending proceeding in Ramapo Town Court against Leah Indig for failure to obtain a building permit and for violation of the stop work order. That proceeding remained pending as of time this motion was fully briefed.

B. Meir Kahana

Meir Kahana resides in the Village. The Village ticketed Kahana for a small pool purchased at Toys 'R' Us that was temporarily on his property. The Village also issued Kahana a warning for a dog waste violation, although Kahana maintains he does not own a dog.

Kahana alleges defendant Deputy Mayor Leon Harris instructed Zummo to issue the violations, which Kahana attributes to intentional religious discrimination. (Am. Compl. ¶¶ 78-80).

According to defendants, Kahana pleaded guilty in Haverstraw Town Court for erecting an unfenced pool on his property in violation of Village code.

C. Robert and Naftali Klein

Robert Klein ("Klein") lives in the Village in a home owned by his father, Naftali Klein. In 2016, Klein began a project to "lift and expand" his home (Am. Compl. ¶ 83), pursuant to which he submitted renovation plans to the Village. During a zoning board meeting, Zummo allegedly said it would be "just like them" to build an illegal basement apartment. (Am. Compl. ¶ 84). Klein claims Zummo's statement was discriminatory against Orthodox Jews.

The Village then required Klein to submit new plans, which he did. In December 2016, the Village issued a permit for the renovation. Klein put the renovation on hold, and in March 2017, he submitted a revised plan.

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The work on Klein's house began on April 24, 2017. The house was lifted and placed on temporary supports.

On June 30, 2017, Zummo issued a stop work order. Klein alleges the basis for the order was discriminatory. He also claims to have seen a text message from defendant Mayor Brett Yagel to Zummo, in which Yagel directed Zummo to "give Klein a SWO by 3 pm or you are fired." (Am. Compl. ¶ 87).

At Zummo's direction, Klein resubmitted the revised plan, the same one submitted in March 2017. In August 2017, after reviewing the revised plan, Zummo approved the work. However, in October 2017, Zummo issued a second stop work order. Klein learned the reason for the second stop work order was an issue with the fire sprinklers, after which he submitted a new plan to the Village on November 20, 2017. Klein's engineer received an email from the Village engineer on November 28, 2017, which stated the plan complied with the Village code but could be rejected for lack of detail. Thereafter, in April 2018, Klein revised and resubmitted the plan in response to the Village engineer's concern.

From November 28, 2017, to April 2018, Klein did not hear from the Village. Consequently, Klein's home allegedly "began to suffer damage due to exposure to the elements." (Am. Compl. ¶ 92). Klein claims Zummo revealed to defendant Village Attorney Doris Ulman that the Village's strategy of stonewalling was deliberate. Klein further alleges that during this time, non-Jewish residents were allowed to renovate their homes without the same onerous code requirements, and that such residents did not receive stop work orders.

According to defendants, Naftali Klein was found guilty in Haverstraw Town Court of violating a stop work order.

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Robert Klein also received a "garbage ticket" as well as a ticket for failing properly to dispose of leaves. (Am. Compl. ¶ 96). Klein claims this was another instance of discriminatory enforcement: non-Jewish residents, whose failures to dispose leaves were far worse, were not ticketed.

Klein was elected to the Village Board of Trustees in 2017. Klein alleges that following his election, Yagel threatened him and told him to "watch [his] back." (Am. Compl ¶ 81). Klein argues that in his tenure on the Village Board of Trustees, he has been mistreated due to his religion. Specifically, Klein alleges he has been denied access to records, refused a key to the Village office, and sidelined by other board members who have tried to hold meetings on Jewish holidays.

II. Allegations of Intentional Discrimination

In addition to the conduct plaintiffs personally experienced, plaintiffs allege defendants' conduct was part of a broader pattern of discrimination against the Village's Orthodox Jewish residents.

Plaintiffs first point to a recent ruling in which a judge in this District found that Yagel and Ulman had intentionally engaged in an effort "to thwart the spread of the Orthodox/Hasidic Jewish community into the village." (Am. Compl. ¶ 14) (discussing Congregation Rabbinical Coll. of Tartikov, Inc. v. Vill. of Pomona, NY, 280 F. Supp. 3d 426, 455 (S.D.N.Y. 2017)).

Plaintiffs then discuss an account detailed in a report of the New York State Division of Human Rights (the "Human Rights Report"), released in June 2018, in which a so-called whistleblower complained of defendants' discriminatory attitudes and conduct towards Orthodox Jewish residents of the Village. Specifically, plaintiffs allege the Human Rights Report found that: (i) Yagel routinely referred to Orthodox Jews as "Them" or "Those People"; (ii) Yagel

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suggested a Village employee place pork rinds on the public counter in a Village office to deter Orthodox Jews from seeking access to municipal services; (iii) Zummo admitted to mocking and imitating Orthodox Jewish residents; (iv) the Village engaged in discriminatory conduct towards Orthodox Jewish residents with its building permits; (v) Ulman admitted to intentionally making certain residents miserable for unlawful discriminatory reasons; and (vi) the Village targeted "the Jewish community for disparate treatment through selective ticketing of Jewish residences and prayer gatherings." (Am. Compl. ¶ 17).


I. Legal Standards

A. Rule 12(b)(1)

"[F]ederal courts are courts of limited jurisdiction and lack the power to disregard such limits as have been imposed by the Constitution or Congress." Durant, Nichols, Houston, Hodgson, & Cortese-Costa, P.C. v. Dupont, 565 F.3d 56, 62 (2d Cir. 2009).2 A cause of action "is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Nike, Inc. v. Already, LLC, 663 F.3d 89, 94 (2d Cir. 2011). The party invoking the Court's jurisdiction bears the burden to establish that jurisdiction exists. Conyers v. Rossides, 558 F.3d 137, 143 (2d Cir. 2009).

When deciding whether subject matter jurisdiction exists at the pleading stage, the Court "must accept as true all material facts alleged in the complaint and draw all reasonable inferences in the plaintiff's favor." Conyers v. Rossides, 558 F.3d at 143. "However, argumentative

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inferences favorable to the party asserting jurisdiction should not be drawn." Atl. Mut. Ins. Co. v. Balfour Maclaine Int'l Ltd., 968 F.2d 196, 198 (2d Cir. 1992).

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