Lubavitch of Old Westbury, Inc. v. Inc. Vill. of Old Westbury

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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 SIMPSON, in his official capacity and individually; TRUSTEE MICHAEL WOLF, in his official capacity and individually; TRUSTEE ELAINE GREENBERG, in her official capacity; TRUSTEE CORY BAKER, in his official capacity and individually; TRUSTEE JEFFREY K. BROWN, in his official capacity; TRUSTEE MARINA CHINERINE, in her official capacity; TRUSTEE LESLIE FASTENBERG, in her official capacity; TRUSTEE EDWARD NOVICK, in his official capacity and individually; TRUSTEE CHRISTOPHER SAUVIGNE, in his official capacity; TRUSTEE ANDREW WEINBERG, in his official capacity; MICHAEL MALATINO, in his official capacity as Superintendent of Buildings, and individually; THE POLICE DEPARTMENT OF THE INC. VILLAGE OF OLD WESTBURY, NEW YORK; and DOE INC. VILLAGE OF OLD WESTBURY, NEW YORK POLICE OFFICERS 1 through 15, Defendants.

No. 2:08-CV-05081 (GRB) (LGD)

United States District Court, E.D. New York

February 7, 2023

REPORT AND RECOMMENDATION

Lee G Dunst United States Magistrate Judge

Presently before the Court is a motion to partially dismiss this action, which has been pending for more than fourteen years and involves factual allegations going back to 1994. In the years since the initial complaint was filed on December 17 2008, this case has been assigned (and then reassigned) to four District Judges (Judges Thomas C. Platt, Denis R Hurley, Joan M. Azrack, and currently Gary R. Brown) and four Magistrate Judges (Judges A. Kathleen Tomlinson, E. Thomas Boyle, Arlene R. Lindsay, and currently the undersigned). Furthermore, numerous law firms and attorneys have come and gone on behalf of the parties over this lengthy time span. As a reminder to the parties, they have an affirmative obligation under Federal Rule of Civil Procedure (“Rule”) 1 “to secure the just, speedy, and inexpensive determination of every action and proceeding.” Fed.R.Civ.P. 1 (emphasis added). During a conference on April 21, 2017, Judge Hurley aptly observed that “the case had “been in [a] state of flux where nothing actually happened for years.” Electronic Case File number (“ECF No.”) 93-3 at 15:24-16:1 (emphasis added). The undersigned agrees with Judge Hurley. It is difficult to see how the parties have been living up to their Rule 1 obligation to obtain a “speedy” resolution in a case where the complaint was filed more than 5,000 days ago.^[1]

Since 2008, Plaintiffs Lubavitch of Old Westbury, Inc. (“Lubavitch”) and Rabbi Aaron Konikov (“Rabbi Kanikov;” together with Lubavitch, “Plaintiffs”) have alleged that various and differing groups of defendants discriminated against Plaintiffs based on their religion, in violation of federal and New York law, by preventing them from opening a religious institution. See generally Complaint, ECF No. 1 (“Original Complaint” or “Compl.”); Second Amended Complaint, ECF No. 110 (“SAC”). Presently before the Court, pursuant to the November 10, 2022 referral from the Honorable Gary R. Brown for a Report and Recommendation, is the Defendants' motion to partially dismiss the SAC. See Notice Of Motion, ECF No. 160. For the reasons set forth below, the undersigned respectfully recommends that the Court grant Defendants' motion (ECF No. 160), as well as dismiss sua sponte all claims against The Board Of Trustees Of The Incorporated Village Of Old Westbury, New York.^[2]

I. BACKGROUND

Given that the SAC concerns “facts spanning over twenty-five years, the last thirteen of which enmesh with this Court's oversight thereof,” this section addresses both the relevant facts and procedural history. Lubavitch of Old Westbury, Inc. v. Inc. Vill. of Old Westbury, New York, No. 08-CV-5081, 2021 WL 4472852, at *1 (E.D.N.Y. Sept. 30, 2021) (approach adopted by Judge Hurley, who explained these circumstances “lend themselves to the Background Section interweaving the merits with the procedure”). Unless otherwise specified, the facts set forth herein are taken from the SAC and documents incorporated into the SAC by reference. See Vengalattore v. Cornell Univ., 36 F.4th 87, 102 (2d Cir. 2022).

A. The Parties

Plaintiff Lubavitch is a New York religious corporation serving the Orthodox Jewish community in Old Westbury, New York with plaintiff Rabbi Konikov as its emissary. See SAC ¶¶ 1-2, 14, 78-79, 120.

In the SAC, Plaintiffs assert claims against thirty-one different defendants-specifically, three entities, thirteen named individuals, and fifteen John Does. Defendant the Incorporated Village of Old Westbury, Inc. (the “Village”) is a municipal corporation. Id. ¶ 85. The Village is governed by defendant Village Board of Trustees (the “Board”), which consists of the Village mayor and four trustees. Id. ¶ 87. Defendant Edward J. Novick (“Novick”) is presently the mayor (a position he has held since 2020), and he previously served as a trustee from 2015 to 2020. See id. ¶ 106. Defendants Cory Baker (“Baker”) and Marina Chimerine (“Chimerine”) are presently trustees and have held those positions since 2015. Id. ¶¶ 101, 104. Defendant Jeffrey K. Brown (“Brown”) is presently a trustee and has held that position since 2019. Id. ¶ 103. Defendant Andrew Weinberg (“Weinberg”) is presently a trustee, has held that position since 2020, and previously served as a trustee from approximately 2013 to 2015. Id. ¶ 108. Defendant Michael Malatino (“Malatino”) advises the Board in his capacity as the Superintendent of Buildings and Public Works. Id. ¶ 109.

Several defendants were previously Board members. Defendant Fred Carillo (“Carillo”) served as a member of the Board from 1995 until 2020, with his time from before 2008 spent as a trustee and his time thereafter spent as mayor. Id. ¶ 88. The following defendants were formerly trustees at various points over the last two decades: Henry Alpert (“Alpert”), Michael Wolf (“Wolf”), Elaine Greenberg (“Greenburg”), Harvey Simpson (“Simpson”), Leslie Fastenberg (“Fastenberg”), and Christopher Sauvigne (“Sauvigne”). See id. ¶¶ 93, 95, 97, 99-100, 105, 107. Each of the aforementioned individual defendants is sued both in his official capacity and individually-except Greenberg, Brown, Fastenberg, Sauvigne, Chimerine, and Weinberg are sued solely in his or her official capacity.^[3]

Defendant Police Department of the Incorporated Village of Old Westbury, New York (“OWPD”) is the police force which employed Defendants Police Officers Doe 1 through 15. Id. ¶¶ 113-14. This Report and Recommendation refers to all these entities and individuals named as defendants in the SAC collectively as “Defendants.”

B. 1994: Rabbi Konikov's Religious Use Of His Home

In January 1994, Rabbi Konikov and his wife rented a home near Glen Cove Road in Old Westbury to offer prayer services. Id. ¶ 173. In July 1994, Carillo and Blau warned Rabbi Konikov that the Village prohibited religious land use without a permit and that such activity must cease. Id. ¶ 174. In September 1994, the Village commenced an action to “enjoin [Rabbi Konikov and his wife] from inviting guests to their home for prayer.”^[4] Id. ¶¶ 81-82; see id. ¶¶ 174-75. In May 1995, due to the commencement of that action, Rabbi Konikov's landlord issued a notice of intention to terminate the lease and directed Rabbi Konikov and his wife to vacate the premises. See id. ¶¶ 81-82, 174-75.

C. 1998-2007: Plaintiffs' Purchase Of The Property, Efforts To Use The Property For Religious Purposes, Pursuit Of Tax-Exempt Status, And Village Negotiations

Between 1998 and 1999, Plaintiffs determined that another nearby property in Old Westbury (specifically, 267 Glen Cove Road) would meet their needs to serve their Orthodox Jewish community. Id. ¶ 58. In 1999, Plaintiffs acquired the lot at 267 Glen Cove Road to develop a Temple, impart religious education, and provide related religious services and fellowship. See id. ¶¶ 11, 14, 57, 78-79. Plaintiffs have since acquired three additional adjoining properties that, together with the lot at 267 Glen Cove Road, comprise approximately seven acres. Id. ¶¶ 4-13. Unless otherwise noted, this Report and Recommendation will use the term “Property” to reference these aggregate four lots in Old Westbury.

In May 1999, after they purchased the property at 267 Glen Cove Road, Plaintiffs applied for the necessary building permits. Id. ¶ 60. Unnamed “Village officials” rejected that application and gave the alleged “pretextual” justification that the Village was contemplating-though had not yet implemented-a moratorium on construction. Id. ¶¶ 60-63. In June 1999, the Village imposed that moratorium as it began to consider a Place of Worship Law (“POW Law”) applicable to religious land use applicants. Id. ¶¶ 62, 149. According to Plaintiffs, the Village imposed the moratorium “to assess options and discourage what the Village[,] including Alpert, Blau, Carillo, Simpson, and Wolf knew were several pending and intended religious land development and use applications.” Id. ¶ 150. In March 2001, the Village ended the moratorium and adopted the POW Law. Id. ¶ 62. The POW Law requires properties to meet certain conditions, such as having a minimum lot size of twelve acres, before they can be put to religious use. Id. ¶ 162; see id ¶ 64 (describing additional prerequisites the POW Law imposes before the Village authorizes properties to be used for religious purposes).

On October 29, 1999, notwithstanding the denial of their religious use permit application several months earlier Plaintiffs invited worshippers to a dedication ceremony to be held at the...