Lubavitch of Old Westbury, Inc. v. Vill. of Old Westbury
| Docket Number | 2:08-cv-5081 (DRH) (ARL) |
| Decision Date | 30 September 2021 |
| Parties | LUBAVITCH OF OLD WESTBURY, INC. and RABBI AARON KONIKOV, Plaintiffs, v. INCORPORATED VILLAGE OF OLD WESTBURY, NEW YORK; THE BOARD OF TRUSTEES OF THE INCORPORATED VILLAGE OF OLD WESTBURY, NEW YORK; MAYOR FRED CARILLO, in his official capacity and individually; TRUSTEE HENRY ALPERT, in his official capacity and individually; TRUSTEE HARVEY BLAU, in his official capacity and individually; TRUSTEE HARVEY SIMPSON, in his official capacity and individually; TRUSTEE MICHAEL WOLF, in his official capacity and individually; TRUSTEE ELAINE GREENBERG, in her official capacity; TRUSTEE STEVEN GREENBERG, in his official capacity; TRUSTEE CORY BAKER, in his official capacity and individually; TRUSTEE JEFFREY K. BROWN, in his official capacity; TRUSTEE MERINA CHIMERINE, in her official capacity and individually; TRUSTEE LESLIE FASTENBERG, in her official capacity; TRUSTEE EDWARD NOVICK, in his official capacity and individually; TRUSTEE ANDREW WEINBERG, in his official capacity; TRUSTEE MICHAEL MALATINO, in his official capacity as Superintendent of Buildings and individually; THE POLICE DEPARTMENT OF THE INCORPORATED VILLAGE OF OLD WESTBURY, NEW YORK; AND DOE INCORPORATED VILLAGE OF OLD WESTBURY, NEW YORK POLICE OFFICERS 1 THROUGH 15, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
ORDER ADOPTING IN PART REPORT AND RECOMMENDATION
Presently before the Court is the Report and Recommendation of Magistrate Judge Arlene R. Lindsay, dated July 7, 2021 (the "R&R") [DE 104], recommending that the Court (i) deny Plaintiffs Lubavitch of Old Westbury, Inc. and Rabbi Aaron Konikov's ("Plaintiffs") motion to amend their complaint and (ii) grant Defendants Village of Old Westbury, New York and the Board of Trustees of the Village of Old Westbury, New York's motion to strike the Declaration of Rabbi Aaron Konikov except as it relates to jurisdictional facts.
Plaintiffs filed objections to the R&R pursuant to Federal Rule of Civil Procedure ("FRCP") 72 on July 21, 2021, [DE 105] ("Obj."), to which Defendants responded on August 11, 2021, [DE 107] ( ), and to which Plaintiffs replied on August 23, 2021, [DE 108] ( ). For the reasons stated below Plaintiffs' objections are sustained in part and overruled in part, the R&R is adopted in part Plaintiffs' motion to amend is granted, Defendants' motion to strike is denied, and Defendants are granted leave to move to dismiss once the amended complaint is filed.
The land-use claims in both the first Complaint, [DE 1] ("Initial Complaint" or "Initial Compl."), and the Proposed Second Amended Complaint, [DE 92-3] ("SAC"), involve facts spanning over twenty-five years, the last thirteen of which enmesh with this Court's oversight thereof. The five new, additional claims introduced by SAC focus on events occurring in the last five years - events within the fabric of Defendants' allegedly broad scheme of anti-religious discrimination and not strictly the land-use application process. These threads lend themselves to the Background Section interweaving the merits with the procedure.
Ample use of subsection headings guide the reader, along with the following roadmap: first, the parties and property at issue are identified; second, all the events, including those involving the Court, are recounted chronologically; third the alleged financial consequences to Plaintiffs are summarized; fourth, the current procedural posture is laid out; fifth and finally, the differences between the SAC and the Initial Complaint are outlined.
The merits as alleged in the SAC are taken as true for the purposes of this Order. See Panther Partners Inc. v Ikanos Commc'ns, Inc., 681 F.3d 114, 119 (2d Cir. 2012).
Plaintiff Lubavitch of Old Westbury, Inc. is a religious corporation serving the Orthodox Jewish community in Old Westbury, New York with Plaintiff Rabbi Aaron Konikov ("Rabbi Konikov") as its emissary. (SAC ¶¶ 1-2, 14, 78, 79, 120 [DE 92-3]). In 1999, Plaintiffs acquired a lot at 267 Glen Cove Road seeking to "develop a Temple, religious education, and related ancillary facilities for religious uses." (Id. ¶¶ 11, 14, 57, 78, 79). Since that time, Plaintiffs acquired three additional adjoining lots and, together with 267 Glen Cove Road, the four lots are roughly 7.15 acres in size. (Id. ¶¶ 4-13). Unless otherwise noted, the term "Property" refers to the four properties in the aggregate, despite Plaintiffs' acquisitions at different points in time, and the proposed development thereon.
Defendant the Incorporated Village of Old Westbury, Inc. (the "Village") is a municipal corporation governed by a Board of Trustees (the "Board") consisting of its mayor and four trustees. (Id. ¶¶ 85-87). The individuals filling these positions have changed with time. Defendant Mayor Fred Carillo is the present mayor and a former trustee. (Id. ¶ 88). Defendant Trustee Harvey Blau-deceased-is a former mayor and former trustee. (Id. ¶ 91). The following Defendants at some point also served as trustees: Henry Alpert, Michael Wolf, Steven Greenberg (deceased), Elaine Greenberg, Harvey Simpson, Cory Baker, Jeffrey K. Brown, Marina Chemerine, Leslie Fastenberg, Edward J. Novick, Christopher Sauvigne, and Andrew Weinberg. (Id. ¶¶ 93, 95, 98, 99, 101, 103-08). Defendant Michael Malatino advises the Board in his capacity as the Superintendent of Buildings and Public Works. (Id. ¶ 109). Each of the aforementioned individuals is sued both in his or her official capacity and individually - except Defendants Elaine Greenberg, Jeffrey K. Brown, Leslie Fastenberg, Christopher Sauvigne, and Andrew Weinberg, who are sued solely in his or her official capacity.
Defendant Police Department of the Village is the police force to which Defendants Police Officers 1 through 15 belong. (Id. ¶¶ 113-14).
In January 1994, Rabbi Konikov rented a home at 1 The Pines, Old Westbury intending to offer his home for prayer services. (Id. ¶ 173). Defendants warned Rabbi Konikov that the Village prohibited religious use without a permit and, in September 1994, commenced proceedings to "enjoin [him] from inviting guests to [his] home for prayer." (Id. ¶¶ 81-82, 174-75). In May 1995, as a result of the Village's prosecution, Rabbi Konikov's landlord issued him a notice of intention to terminate the lease and directed him to vacate the premises. (Id.).
Between 1998 and 1999, Plaintiffs determined that the Property at 267 Glen Cove Road would meet their needs to serve their Orthodox Jewish community. (Id. ¶ 58). Once purchased, Plaintiffs applied for building permits for the Property. (Id. ¶ 60). Their application was denied. (Id.).
In June 1999, the Village began to consider a Place of Worship Law ("POW Law") applicable to religious land use applicants and imposed a land development moratorium. (Id. ¶¶ 89, 149). Defendants allegedly imposed the moratorium "to assess options and discourage what [Defendants] . . . knew were several pending and intended religious land development and use applications." (Id. ¶ 150). The Village adopted the POW Law and ended the moratorium in March 2001. (Id. ¶ 62). It requires properties to meet certain conditions before they can be put to, inter alia, religious use, e.g., have a twelve-acre minimum lot size. (Id. ¶¶ 64, 162).
In November 1999, notwithstanding their application's denial, Plaintiffs invited worshippers to a dedication ceremony at the Property. (Id. ¶¶ 182-85). The Village, as it did five years prior, issued a notice to Plaintiffs that the event would be an impermissible religious activity without a permit. (Id.). The SAC does not state whether Plaintiffs held the ceremony. (See id.).
In April 2000, Plaintiffs received Nassau County tax-exempt status. Because the Village allegedly "did not recognize" the status, it continued to direct property tax notices to Plaintiffs. (Id. ¶¶ 176-180). Upon inquiry in July 2002, the Village alerted Plaintiffs that, regardless of their Nassau County tax-exempt status, they could not be exempt from the Village's property taxes without submitting an application directly to the Village. (Id.). The Village then reiterated its demand that Plaintiffs "satisfy [their] debts imposed by the Village." (Id.). Plaintiffs later applied for Village tax-exempt status in December 2002, which the Village granted in part and denied in part in March 2003. (Id. ¶ 181).
Between 2001 and 2005, Plaintiffs "attempt[ed] to negotiate the material terms of religious land use and development on the" Property. Since 2004-and continuing to the present-Plaintiffs have rented property in order to fulfill their religious mission. (Id. ¶¶ 67, 221). Following negotiations, Plaintiffs renewed their religious-use application in 2006; in December 2007, Defendants summarily denied the application due to noncompliance with the POW Law. (Id. ¶¶ 68, 190).
Plaintiffs commenced this action on December 17, 2008. See Initial Compl. The parties nevertheless continued negotiations. In the course thereof, on June 25, 2009, Defendant Carillo "conveyed" that Defendants would "pave the way toward issuance of a building permit for the [Property] as it then existed." (Id.). Allegedly, Defendants promised that if Plaintiffs followed Defendants' "directives, their religious land use application would be approved. . . without presentation to the Village Board of Zoning Appeals or any other Village Body" and instead would "be reviewed [solely] by the Board." (Id. ¶¶ 191-94).
On July 31, 2009, the...
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