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April 12, 2000


The opinion of the court was delivered by: Smith, United States Magistrate Judge


The plaintiffs, a non-profit religious organization and two individuals who describe themselves as ultra-Orthodox Jews, filed this civil rights action against the Village of New Hempstead, the Village Mayor, Lawrence Dessau, and the Village Deputy Building Inspector, William Moriarty, alleging that the defendants have discriminated against them on the basis of their religious affirmation. The individual defendants are sued in both their individual and official capacities. Pursuant to the provisions of 28 U.S.C. § 636(c), the parties have consented to conduct all proceedings in this case before me.

Plaintiffs allege federal violations under the First, Fourth, and Fourteenth Amendments to the United States Constitution, the Civil Rights Act, 42 U.S.C. § 1981, 1982, 1983, 1985, 1986 and 1988, and the Fair Housing Act, 42 U.S.C. § 3604 and 3612; they also invoke the supplemental jurisdiction of the Court for alleged state law violations of Article I, §§ 1, 3, 8, 9 and 11 of the New York State Constitution, the New York Civil Rights Law § 40-c, and the New York Executive Law § 291. More specifically, plaintiffs assert that the defendants have selectively enforced the Village's zoning laws against the plaintiffs because of their religion, have engaged in bad faith prosecutions against them, and have conspired to do so in violation of federal law. Plaintiffs also allege that the Village Zoning Code itself is unconstitutional, because it fails to provide for fair housing or multi-family dwellings, despite the need for such housing for individuals who must live close to places of worship and schools, and because it contains provisions intended to burden Orthodox Jews.

Defendants have moved for summary judgment on all counts of the complaint, alleging that the zoning code does not violate federal or state law, that it has not been discriminatorily applied, that in any event the individual defendants are protected by immunity, and that the plaintiffs' suit is a "SLAPP" suit subject to heavier burdens of pleading and proof, and should be dismissed on that basis. In response, plaintiffs assert that they have raised valid federal and state constitutional and statutory claims, that triable issues of fact exist which preclude summary judgment, that the individual defendants are not immune, and that New York law on SLAPP suits does not apply to this case.

For the reasons described below, defendants' motion is denied in its entirety.


In accordance with Federal Rule of Civil Procedure 56(c), "[a] motion for summary judgment may not be granted unless the court determines that there is no genuine issue of material fact to be tried and that the facts as to which there is no such issue warrant judgment for the moving party as a matter of law." Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir. 1995); see generally Celotex Corp. v. Catrett, 477 U.S. 317, 320-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The standard for summary judgment "provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The Court's responsibility is to perform "the threshold inquiry of determining whether there is the need for a trial — whether, in other words, there are any genuine factual issues that properly can be resolved by a finder of fact because they may reasonably be resolved in favor of either party." McNeil v. Aguilos, 831 F. Supp. 1079, 1082 (S.D.N.Y. 1993) (quoting Liberty Lobby, 477 U.S. at 250, 106 S.Ct. 2505). The moving party may rely on the evidence in the record to point out the absence of genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. at 323, 106 S.Ct. 2548. As noted in Celotex, a motion for summary judgment "may, and should, be granted so long as whatever is before the district court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 56(c) is satisfied." Id.

The responding party must set forth facts showing that there is a genuine issue for trial. FED.R.CIV.P. 56(e). A summary judgment motion cannot be defeated by speculation or conjecture. See Pollis v. New Sch. for Soc. Research, 829 F. Supp. 584, 586 (S.D.N.Y. 1993) (quoting Western World Ins. Co. v. Stack Oil Inc., 922 F.2d 118, 121 (2d Cir. 1990)). Rather, the responding party must show the existence of a disputed material fact in light of the substantive law. See Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505. The responding party must do more than simply show that there is some metaphysical doubt as to the material facts. See Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

"In evaluating whether a genuine issue of material fact exists, `[t]he evidence of the non-movant is to be believed,'" Sim v. New York Mailers' Union Number 6, 166 F.3d 465, 469 (2d Cir. 1999) (quoting Liberty Lobby, 477 U.S. at 255, 106 S.Ct. 2505), and "a court must resolve all ambiguities, and draw all reasonable inferences, against the moving party." McNeil, 831 F. Supp. at 1082 (quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962) (per curiam) and Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987)). "On a motion for summary judgment, a court `cannot try issues of fact; it can only determine whether there are issues to be tried.'" Cronin v. Aetna Life Insurance Co., 46 F.3d 196, 203 (1995) (quoting Donahue, 834 F.2d at 58 (internal quotes omitted)). "Only when no reasonable trier of fact could find in favor of the nonmoving party should summary judgment be granted." Cruden v. Bank of New York, 957 F.2d 961, 975 (2d Cir. 1992) (quoting H.L. Hayden Co. of New York, Inc. v. Siemens Med. Sys., Inc., 879 F.2d 1005, 1011 (2d Cir. 1989)).


The facts that I rely on below are either undisputed or are taken in the light most favorable to the plaintiffs, who are the non-moving parties. Where there is a substantial dispute on a particular fact issue, I will draw attention to that in my discussion.

This case arises out of the acquisition by the Yeshiva Chofetz Chaim Radin, Inc. ("Yeshiva") of a parcel of land, in the Village of New Hempstead, that was previously owned by the United States military. The property, comprising just under five acres of land, contains twelve three-bedroom homes previously used for army housing. The housing pre-dated formation of the Village of Hempstead. While it does not conform to the current zoning code, which would appear to require subdivision of the lot and to limit the number of units that could be built on the parcel, the plaintiffs contend that the existing buildings and their use are "grandfathered in" as a pre-existing nonconforming use and pre-existing nonconforming structures — the continued existence and use of which are permitted under the zoning code — and that the transfer of title from the United States government to the plaintiffs does not invalidate that status. The Village and the individual defendants, on the other hand, argue that because the land was formerly owned by the United States and was therefore not subject to Village zoning restrictions, but is now being transferred to private citizens, the "grandfathering" provisions do not apply and the current arrangement cannot continue to exist as a nonconforming use. Complicating the picture further is the fact that the buildings are alleged to have contained certain potentially toxic compounds, such as asbestos and lead; the defendants allege that this circumstance increases the urgency of Village oversight of any construction and occupancy on the site.

Against the background of this disagreement in interpretation of the zoning provisions, the defendants took a variety of steps to restrict the plaintiffs' use and occupancy of the property. These steps included, inter alia, notifications to the plaintiffs of their alleged violation of the zoning law by failure to subdivide; efforts by the Village building inspector to stop construction work being done on the property, and to prevent the Yeshiva and its members from occupying the entire premises even though work was only being done on a small number of the buildings; efforts to bring county and state health inspectors onto the grounds to stop and/or regulate construction; efforts to convince United States military representatives to stop the Yeshiva's activity on the grounds and to bar them from the property; a communication to the United States representatives, from the Mayor, advising the recipients of a list of purported judgments against the Yeshiva, allegedly sent to discourage the government from selling the property to the Yeshiva; and the filing of an action in state court, by the Village, to enjoin the Yeshiva's activities on the site.

The Yeshiva alleges that many of these actions taken by the Village not only constituted discriminatory application of its laws, but also were undertaken in circumstances in which the Village had no jurisdiction to act at all, since title had not yet passed to the Yeshiva, and thus the plaintiffs' activities on the grounds were subject only to the jurisdiction of the United States government, not the Village.

Finally, plaintiffs allege that the discriminatory application of the Village zoning laws — and in fact the actual passage of certain provisions of those laws, such as the prohibition of multi-family housing and the requirement of a special permit to have two kitchens in one house — were undertaken with the purpose and effect of preventing Orthodox Jews from residing in the Village. In support of these allegations, plaintiffs present affidavits detailing certain statements to that effect allegedly made by the Mayor, as well as other historical evidence assertedly demonstrating discriminatory intent on the part of the defendants.


I. Defendants' Assertion That Plaintiffs Raise No Triable Issues of Fact.

The Court's task in resolution of this summary judgment motion has been made immensely more difficult by the failure of the defendants, in their moving papers, to identify the required elements of any of the claims brought against them in this action. While defendants assert that plaintiffs have failed to meet certain standards or establish certain facts in their submissions — arguing, for example, that plaintiffs seek to transform a simple zoning dispute into a claim of federal rights violations, that there is no requirement that Orthodox Jews live in multi-family housing, and that the facts of this case differ from those in LeBlanc-Sterberg v. Fletcher, 67 F.3d 412 (2d Cir. 1995), which addressed similar allegations — defendants have simply not identified the ways in which those alleged shortcomings by the plaintiffs relate to each (or any) of the claims before the Court in this case. Defendants do tangentially address some of the constitutional claims made by plaintiffs, asserting that "plaintiffs['] constitutional rights are not without limits" (Memorandum of Law on Behalf of Defendants in Support of Motion for Summary Judgment ("Def.Mem.") at 19) and arguing that "incidental infringements upon religious expression are constitutionally permitted when a legitimate conflict arises." (Id. at 20). However, defendants fail to identify or cite the governing standards for First Amendment or Equal Protection violations, and so, of course, fail to identify the ways in which such standards apply to their motion, or the ways in which plaintiffs' submissions do not meet those standards. Nor have defendants distinguished in any way between the state and federal claims in the action, or identified the extent to which the application of their asserted defenses to those distinct claims might vary.

Faced with these omissions, I have undertaken a brief review of the essential elements of the constitutional and Fair Housing Act claims asserted by plaintiffs. As a result of that review I have determined that genuine issues of material fact exist as to each of those claims, and that there is no basis upon which judgment would be warranted for defendants as a matter of law. Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir. 1995).

A. First Amendment Claims.

In Storm v. Town of Woodstock, New York, 32 F. Supp.2d 520 (N.D.N.Y. 1998), aff'd 165 F.3d 15 (2d Cir. 1998), the trial court, drawing together many of the primary strands of First Amendment religious protections, explained,

"Abhorrence of religious persecution and intolerance is a basic part of our heritage." Braunfeld v. Brown, 366 U.S. 599, 606, 81 S.Ct. 1144, 6 L.Ed.2d 563 (1961). It is a well-settled principle, embodied in the Free Exercise Clause of the First Amendment and made applicable to the States through the fourteenth Amendment, see Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 84 L.Ed. 1213 (1940), that the government cannot enact legislation designed to regulate, impede or discriminate against religious expression. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993); McDaniel v. Paty, 435 U.S. 618, 626, 98 S.Ct. 1322, 55 L.Ed.2d 593 (1978). Specifically, the Free Exercise Clause bars the government from ...

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