Case 15-1192, Document 115-1, 03/23/2016, 1734041, Page1 of 8

15-1192-cv (L)
Bernstein v. Village of Wesley Hills

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

SUMMARY ORDER
RULINGS

BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

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At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the
23rd day of March, two thousand sixteen.
PRESENT: DENNIS JACOBS,
PETER W. HALL,
Circuit Judges
JANE A. RESTANI,1
Judge.
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RABBI JAMES BERNSTEIN, MOSHE AMBERS,
BEATRICE ZAKS, SIMA ZAKS, NAFTOLI
TESHER, MOSDOS CHOFETZ CHAIM, INC.,
Plaintiffs-Appellants,
YESHIVA CHOFETZ CHAIM, INC., RABBI
MAYER ZAKS, RABBI ARYEH ZAKS, RABBI
NAFTOLI SOFER, MILTON B. SHAPIRO, SONYA
SHAPIRO, THE TOWN BOARD OF THE TOWN OF
RAMAPO,
Plaintiffs,

1

Honorable Jane A. Restani, Judge for the United States Court of
International Trade, sitting by designation.

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-v.-

15-1192 (Lead)
15-1195 (Con)

THE VILLAGE OF WESLEY HILLS, THE MAYOR
AND BOARD OF TRUSTEES OF THE VILLAGE OF
WESLEY HILLS, ROBERT H. FRANKL, in his
official capacity, DAVID A GOLDSMITH,
in his official capacity, ROBERT I.
RHODES, in his former official
capacity, JAY B. ROSENSTEIN, in his
former official capacity, EDWARD B.
MCPHERSON, in his official capacity,
THE VILLAGE OF POMONA, THE MAYOR AND
BOARD OF TRUSTEES OF THE VILLAGE OF
POMONA, THE VILLAGE OF CHESTNUT RIDGE,
THE MAYOR AND BOARD OF TRUSTEES OF THE
VILLAGE OF CHESTNUT RIDGE, THE VILLAGE
OF MONTEBELLO, THE MAYOR AND BOARD OF
TRUSTEES OF THE VILLAGE OF MONTEBELLO,
Defendants-Appellees.
THE VILLAGE OF NEW HEMPSTEAD, THE MAYOR
AND BOARD OF TRUSTEES OF THE VILLAGE OF
NEW HEMPSTEAD, ROBERT A. MOSKOWITZ,
TRSUTEE OF THE VILLAGE OF NEW
HEMPSTEAD, in his individual and former
official capacity, FORMER MAYOR
HERBERT I. MARSHALL, in his individual
and former official capacity, MAYOR OF
POMONA NICHOLAS L. SANDERSON, in his
individual and official capacity, JOHN
DOE 1-37, JEROME KOBRE, MAYOR OF THE
VILLAGE OF CHESTNUT RIDGE, in his
individual and official capacity,
TRUSTEE HOWARD L. COHEN, in his
individual and official capacity,
KATHRYN ELLSWORTH, FORMER MAYOR OF
MONTEBELLO, in her individual and
former official capacity, MAYOR OF
MONTEBELLO JEFFREY OPPENHEIM, in his
individual and official capacity,
SCENIC DEVELOPMENT, LLC, TOWN OF
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RAMAPO, THE PLANNING BOARD OF THE TOWN
OF RAMAPO, THE BOARD OF APPEALS OF THE
TOWN OF RAMAPO,
Defendants.

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The Mosdos Plaintiffs are affiliated with the Chofetz Chaim
sect of Orthodox Judaism and reside in the Town of Ramapo, New
York (the “Town”). The Villages Defendants are incorporated
villages located within the Town, and various associated
officials. In 2001, the Town initiated a review of its local
zoning laws, and in 2004, passed the Adult Student Housing Law
(“ASHL”) to permit the construction and operation of adult
student living facilities in certain residential zones.
Pursuant to the ASHL, predecessors to the Mosdos Plaintiffs

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FOR APPELLANTS:

JOSEPH J. HASPEL, Goshen, NY.

FOR VILLAGES APPELLEES:

MICHAEL D. ZARIN (Jody T. Cross, on
the brief), Zarin & Steinmetz,
White Plains, NY.

FOR POMONA APPELLEES:

GREGORY R. SARACINO, Milber Makris
Plousadis & Seiden, LLP, White
Plains, NY.

Appeal from a judgment of the United States District Court
for the Southern District of New York (Karas, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
DECREED that the judgment of the district court be AFFIRMED.
Plaintiffs-appellants, religious organizations and
affiliated individuals (collectively, the “Mosdos
Plaintiffs”), appeal from the judgment of the United States
District Court for the Southern District of New York (Karas,
J.) granting summary judgment dismissing their discrimination
complaint against villages and current and former officials for
those villages (collectively, the “Villages Defendants”). We
assume the parties’ familiarity with the underlying facts, the
procedural history, and the issues presented for review.

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applied for site plan approval for the construction of an adult
student housing facility (“Kiryas Radin”) on a property (the
“Nike Site”) located near the Villages Defendants. As was
required by New York’s State Environmental Quality Review Act
(“SEQRA”), the Town’s Planning Board conducted an analysis on
the impact the construction of Kiryas Radin would have on the
environment and concluded that it would not be significantly
adverse. Accordingly, the Town’s Planning Board cleared the
Mosdos Plaintiffs to build Kiryas Radin on the Nike Site.

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As the Town’s Planning Board finished its SEQRA review, a
subset of the Villages Defendants filed a lawsuit in New York
state court to challenge the ASHL and the Town Planning Board’s
SEQRA analysis (the “SEQRA Action”). In response, the Mosdos
Plaintiffs filed counterclaims under 42 U.S.C. § 1983 alleging
violations of the Free Exercise and Free Speech clauses of the
First and Fourteenth Amendments, the Fair Housing Act, and the
Religious Land Use and Institutionalized Persons Act.

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While the parties litigated the SEQRA Action, the Mosdos
Plaintiffs also filed a new action in federal court against the
Villages Defendants, bringing claims under 42 U.S.C. §§ 1981,
1982, 1983, and 1985(3) alleging violations of the Free
Exercise, Establishment, and Free Association clauses of the
First and Fourteenth Amendments, the Equal Protection Clause
of the Fourteenth Amendment, the Fair Housing Act, and various
state laws (the “Equal Protection Action”). The core
allegation in the Equal Protection Action was that the Villages
Defendants filed the SEQRA Action for discriminatory reasons.

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On March 31, 2010, the district court dismissed all of the
Mosdos Plaintiffs’ claims in the Equal Protection Action on the
ground that the Villages Defendants were entitled to qualified
immunity. Mosdos Chofetz Chaim, Inc. v. Village of Wesley
Hills, 701 F. Supp. 2d 568, 604 (S.D.N.Y. 2010) (Mosdos I). The
district court’s analysis turned on applying the
Noerr-Pennington doctrine2 to the Mosdos Plaintiffs’ civil
rights claims. The district court held that for the Mosdos
2

The name derives from two cases from the 1960s in which the Supreme
Court applied the First Amendment in the antitrust context. See E. R.R.
Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961);
United Mine Workers of Am. v. Pennington, 381 U.S. 657 (1965).

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Plaintiffs to make out a discrimination claim based on the
filing of the SEQRA Action, they had to allege that (i) they
were selectively treated compared with others similarly
situated, and (ii) the selective treatment was motivated by an
intention to discriminate on the basis of, inter alia, religion.
Id. at 603. Because the initial complaint failed to allege
facts to show that similarly situated properties were treated
differently, the district court dismissed the complaint without
prejudice.

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On September 26, 2011, the district court granted in part
and denied in part the Villages Defendants’ motion to dismiss
the amended complaint in the Equal Protection Action. Mosdos
Chofetz Chaim Inc. v. Village of Wesley Hills, 815 F. Supp. 2d
679, 683 (S.D.N.Y. 2011) (Mosdos II). The district court
concluded that the Mosdos Plaintiffs had adequately specified
six similarly situated sites that the Villages Defendants did
not treat the same as the Nike Site, that is, the Villages
Defendants did not file a lawsuit to block the development on
those sites. Id. at 700-04. Accordingly, discrimination
claims against the Villages Defendants proceeded to discovery.

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Meanwhile, the SEQRA Action continued. Though the subset
of the Villages Defendants litigating the SEQRA Action
persuaded a state court to grant them a preliminary injunction
and temporary restraining order against the Kiryas Radin
construction, their claims were eventually dismissed on the
merits. As a result, on December 5, 2012, the Mosdos Plaintiffs
removed the SEQRA Action to federal court to pursue their
counterclaims; there, it was consolidated with the Equal
Protection Action.

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On March 27, 2015, the district court granted summary
judgment to the Villages Defendants on the Mosdos Plaintiffs’
claims in the Equal Protection Action and their counterclaims
in the SEQRA Action. Bernstein v. Village of Wesley Hills, 95
F. Supp. 3d 547, 551 (S.D.N.Y. 2015) (Mosdos III). The district
court concluded that the Mosdos Plaintiffs failed to produce
evidence sufficient to raise a genuine issue of material fact
as to similarly situated sites that were treated differently
or as to whether the Villages Defendants acted out of
discriminatory animus. The district court also rejected the
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Mosdos Plaintiffs’ argument that they had a valid RLUIPA claim
based on this Court’s opinion in Fortress Bible Church v.
Feiner, 694 F.3d 208 (2d Cir. 2012). In this appeal, the Mosdos
Plaintiffs challenge only the determination that they failed
to present sufficient evidence to sustain their discrimination
claims against the Villages Defendants.

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We review de novo a district court’s grant of summary
judgment. Noll v. Int’l Bus. Mach. Corp., 787 F.3d 89, 93 (2d
Cir. 2015). Summary judgment must be granted if “there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
“In assessing the record to determine whether there is a genuine
issue as to any material fact, the court is required to resolve
all ambiguities and draw all factual inferences in favor of the
party against whom summary judgment is sought.” Noll, 787 F.3d
at 94 (internal brackets and citation omitted). A genuine
issue of material fact is one that “might affect the outcome
of the suit under the governing law” and as to which “a
reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

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1. As an initial matter, the Mosdos Plaintiffs do not
appeal from Mosdos I or Mosdos II. Their Pre-Argument
Statement (Form C) states that they are only appealing from a
summary judgment order and that the only issues raised on appeal
are those that concern the summary judgment opinion in Mosdos
III. The Mosdos Plaintiffs’ brief represents that the only
issue presented is whether the district court properly granted
summary judgment for the Villages Defendants, and the only
opinion included in the Mosdos Plaintiffs’ Special Appendix is
Mosdos III. The Villages Defendants argue at length in their
brief that the Mosdos Plaintiffs are not appealing from Mosdos
I or Mosdos II and the Mosdos Plaintiffs do not rebut this
contention in their reply. Accordingly, we lack jurisdiction
to review the district court’s opinions in Mosdos I and Mosdos
II. See Shrader v. CSX Transp., Inc., 70 F.3d 255, 256 (2d Cir.
1995). The remaining issue before us is whether the district
court properly granted summary judgment for the Villages
Defendants. We assume without deciding that the district
court’s Noerr-Pennington-based analysis for determining

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whether the Villages Defendants are entitled to qualified
immunity, detailed in Mosdos I and Mosdos II, is correct.

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2. Turning to Mosdos III, the district court’s thorough
and well-reasoned opinion demonstrated that the Mosdos
Plaintiffs failed to produce evidence sufficient for a jury
finding either that (i) there were similarly situated sites or
(ii) the Villages Defendants acted out of discriminatory
animus. Kiryas Radin is a residential complex containing sixty
residential units at a density of 12.8 units per acre and a
number of non-residential buildings. The Nike Site sits on a
two-lane road of low-to-moderate capacity, is surrounded by a
low-density residential district that contains mostly single
family homes, and is approximately one mile from the nearest
commercial development. The Mosdos Plaintiffs failed to
provide credible evidence that any of the purported comparable
sites were similarly situated, e.g., that they had a similar
impact on traffic and community character, or that the Villages
Defendants knew of the comparable sites before they were built.
The Mosdos Plaintiffs also failed to offer evidence that the
Villages Defendants were driven by discriminatory animus in
bringing the SEQRA Action. Rather, there is no real dispute
that the Villages Defendants were motivated by a genuine concern
that the ASHL and Town’s SEQRA analysis would result in adverse
effects on the environment. Accordingly, we conclude that the
Villages Defendants are entitled to qualified immunity on the
Mosdos Plaintiffs’ claims and counterclaims.

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The Mosdos Plaintiffs raise one additional issue. They
assert that Fortress Bible provides them with either a cause
of action or a theory of discrimination that sustains their
claims. It does neither. Fortress Bible concerned a
municipality abusing the SEQRA review process as a vehicle for
executing its zoning regulations in connection with a church’s
land use proposal for a site located within that municipality’s
jurisdiction. Here, the Villages Defendants – none of which
had jurisdiction over the Nike Site or Kiryas Radin project –
filed a lawsuit to challenge some other municipality’s SEQRA
review. Fortress Bible is inapposite.

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Accordingly, and finding no merit in Mosdos Plaintiffs’
other arguments, we hereby AFFIRM the judgment of the district
court.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK

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