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Yeshiva Imrei Chaim Viznitz of v. the City of New York

July 27, 2011

YESHIVA IMREI CHAIM VIZNITZ OF
BORO PARK, INC., PLAINTIFF,
v.
THE CITY OF NEW YORK, THE NEW YORK
CITY DEPARTMENT OF BUILDINGS, THE
NEW YORK CITY BOARD OF STANDARDS
AND APPEALS, THE FIRE DEPARTMENT
OF NEW YORK, PATRICIA J. LANCASTER,
IN HER OFFICIAL CAPACITY AS FORMER DOB
COMMISSIONER, MEENAKSHI SRINIVASA, IN
HER OFFICIAL CAPACITY AS BSA CHAIRPERSON,
ROBERT LIMANDRI, IN HIS OFFICIAL CAPACITY AS
DOB COMMISSIONER, AND JOHN AND JANE
DOES 1-10, DEFENDANTS.



The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge

OPINION & ORDER

Yeshiva Imrei Chaim Viznitz of Boro Park, Inc. ("Plaintiff"), a duly licensed religious corporation operating a religious school and synagogue, alleges that it is being disparately treated by defendants the City of New York, the New York City Department of Buildings (the "DOB"), the New York City Board of Standards and Appeals (the "BSA"), the New York City Fire Department, Patricia J. Lancaster, in her official capacity as former DOB Commissioner, Meenakshi Srinivasan, in her official capacity as BSA Chairperson, and Robert LiMandri, in his official capacity as DOB Commissioner (collectively, "Defendants" or the "City"). Plaintiff brings seven causes of action against Defendants alleging violations of the Religious Land Use and Institutionalized Persons Act ("RLUIPA") 42 U.S.C. §2000cc(b)(1) and §2000cc(a), the United States Constitution, the Constitution of the State of New York and the Civil Rights Law of the State of New York. Defendants now move for summary judgment. For the reasons that follow, Defendants' motion is GRANTED.

I.Factual and Procedural Background

Plaintiff owns and operates a three-story building with a cellar at 1854 53rd Street in Brooklyn, New York.*fn1 The building is located in an R5 residential zoning district, designed to accommodate all types of residential buildings. The building consists of a yeshiva, which provides religious instruction to over 600 students, and a synagogue. A catering establishment is located in the cellar of the building, and this same cellar space is used for the school's cafeteria and assembly hall.

In May 1999, the DOB issued a final certificate of occupancy ("C of O") to Plaintiff's building. In addition to providing various authorizations as a school and synagogue, the C of O authorized the cellar of the building to be used as a Use Group 9 ("UG9") catering establishment. In 2002, the DOB reexamined Plaintiff's previously approved use and concluded that the building could not include its catering establishment in a district zoned residential. On February 16, 2005 the DOB commenced an action before the BSA to revoke the UG9 designation.

On or about September 19, 2005, Plaintiff filed an application with the BSA for a variance to permit the UG9 catering use that was not permitted in an R5 zoning district, as well as a request to the DOB for approval of the catering establishment as a proper accessory use.*fn2

The DOB denied Plaintiff's accessory use application and Plaintiff appealed to the BSA. On January 9, 2007, the BSA denied both the appeal regarding accessory use, see BSA Resolution of Accessory Use Appeal, Ex. C to 05/16/2011 Decl. of Ave Maria Brennan, Counsel to Defs., in Supp. of Mot. for Summ. J. ("Brennan Decl."), and the variance application, see BSA Resolution of Variance Application, Ex. E to Brennan Decl., and granted the DOB's application to revoke Plaintiff's C of O, see BSA Resolution of DOB Application, Ex. G to Brennan Decl.*fn3 The BSA also granted the DOB's motion to continue its application for revocation/modification of the C of O on April 24, 2007. Id. at 1. The DOB subsequently amended Plaintiff's C of O by removing the UG9 designation for Plaintiff's catering establishment. Id. at 7.

In 2007, Plaintiff filed an action in the New York State Supreme Court, Kings County, challenging the BSA's determinations (hereinafter "the Article 78 proceeding").*fn4 On May 8, 2009, that court (hereinafter "the Article 78 Court") denied Plaintiff's challenges and held that the "resolutions of the BSA [had] a rational basis, and [were] neither arbitrary nor capricious." Yeshiva Imrei Chaim Viznitz of Boro Park, Inc. v. The City of New York, et al., Index Nos. 5347/07, 18565/07, 4841/07, at 83 (N.Y. Sup. Ct. 2009); Ex. I to Brennan Decl.

Plaintiff filed a notice of appeal on June 22, 2009. See Notice of Appeal, Ex. J to Brennan Decl. The New York Supreme Court, Appellate Division dismissed the appeal on February 19, 2010 because Plaintiff failed to perfect its appeal within the time permitted.*fn5 See Yeshiva Imrei Chaim Viznitz of Boro Park, Inc. v. City of New York, et al., No. 2009-06824 (N.Y. App. Div. Feb. 19, 2010); Dismissal for Failure to Timely Perfect, Ex. K to Brennan Decl.

Plaintiff filed its complaint before this Court on August 9, 2010, and brings seven causes of action: (1) Defendants are treating Plaintiff on less than equal terms than comparable non-religious institutions in violation of the RLUIPA 42 U.S.C. §2000cc(b)(1) ("Count I"); (2) Defendants' refusal to recognize Plaintiff's use of the catering establishment as a proper accessory use is a substantial impediment to Plaintiff's religious exercise in violation of RLUIPA 42 U.S.C. §2000cc(a) ("Count II"); (3) Defendants have intentionally treated Plaintiff differently from other similarly situated non-religious and religious institutions in violation of the Equal Protection guarantees of the 14th Amendment of the U.S. Constitution ("Count III"); (4) Defendants' "unequal, adverse treatment" of Plaintiff deprives Plaintiff of the right to free exercise of religion guaranteed by the First and Fourteenth Amendments of the U.S. Constitution ("Count IV"); (5) Defendants, under color of law, have violated Plaintiff's constitutional rights under 42 U.S.C. § 1983 ("Count V"); (6) Defendants have violated the Constitution of the State of New York by depriving Plaintiff of the right to free exercise of religion and equal protection ("Count VI"); and (7) Defendants have deprived Plaintiff of its rights secured by the Civil Rights Law of the State of New York § 40-c ("Count VII"). Compl. ¶¶ 50-94.

Defendants moved for a judgment on the pleadings pursuant to Rule 12(c) on the grounds that: (1) the federal claims in the complaint fail to state a claim upon which relief can be granted because they are barred by the doctrines of collateral estoppel and res judicata; (2) the inability to operate a catering establishment does not constitute a substantial burden under RLUIPA; (3) Count V fails to state an independent claim upon which relief can be granted; and (4) this Court should decline to exercise supplemental jurisdiction over the state law claims. See 12/22/2010 Defs.' Reply Mem. in Supp. of Mot. for J. on Pleadings at 1-2.

Before the Court resolved the motion for judgment on the pleadings, Defendants moved for summary judgment on the grounds that: (1) the claims raised by Plaintiff are barred by the doctrines of collateral estoppel and res judicata; (2) the inability of the school and synagogue to operate a catering establishment does not constitute a substantial burden under RLUIPA; (3) Plaintiff has not met its burden to identify other religious non-profit organizations that are similarly situated and had experienced different treatment as required under RLUIPA; (4) Plaintiff's equal protection claim fails to demonstrate that Plaintiff was similarly situated to other religious non-profit organizations that operate catering establishments; (5) Plaintiff's First Amendment rights are not violated by the application of general accessory use regulations; and

(6) that this Court should decline to exercise supplemental jurisdiction over the state claims. See 05/16/2011 Defs.' Mem. in Supp. of Mot. for Summ. J. at 2-3. This Opinion addresses the Defendants' motion for summary ...


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