Opinion

UNITED STATES DISTRICT COURT 10/30/202   5 1:48 pm

EASTERN DISTRICT OF NEW YORK

------------------------------------------------------X U.S. DISTRICT COURT

LUBAVITCH OF OLD WESTBURY, INC. EASTERN DISTRICT OF NEW YORK

and RABBI AARON KONIKOV, LONG ISLAND OFFICE

Plaintiffs, MEMORANDUM OF LAW

AND ORDER

-against- 08-CV-5081(GRB)(LGD)

INCORPORATED VILLAGE OF OLD

WESTBURY, NEW YORK,

Defendant.

-----------------------------------------------------X

GARY R. BROWN, United States District Judge:

Under defendant’s zoning code, “a pit of manure may be located closer to the

property line than a place of worship.”

-An undisputed fact found at DE 250-1 ¶ 88.

Plaintiffs, a Lubavitch religious organization and its rabbi, seek to build a Chabad on land

located in the Village of Old Westbury. They allege that the Village has thwarted that effort

chiefly through the adoption of a land use statute aimed at places of worship. In a case that is

rapidly approaching its second decade of pendency, and represents the oldest matter on this

Court’s docket, defendants now seek summary judgment as to all claims, and plaintiffs seek

partial summary judgment. Much of the motion practice blithely ignores the relevant, if not

dispositive, litigative history of this action, eliding determinations made by this Court.

Nearly two years ago, this Court affirmed a Report and Recommendation describing “the

unacceptably long history of this case,” noting that review of this “woeful tale makes it plain that

this matter must be moved forward with deliberate speed.” Lubavitch of Old Westbury, Inc. v.

Inc. Vill. of Old Westbury, New York, No. 08-CV-5081 (GRB) (LGD), 2024 WL 656516, at *2

(E.D.N.Y. Feb. 16, 2024) (“Lubavitch II”). In that decision, the Court noted that the thorough,

thoughtful decision of Judge Hurley, rendered several years earlier, proved dispositive of many

of the issues raised at that time. Id. (citing Lubavitch of Old Westbury, Inc. v. Inc. Vill. of Old

Westbury, New York, No. 08-CV-5081 (DRH) (ARL), 2021 WL 4472852 (E.D.N.Y. Sept. 30,

2021) (“Lubavitch I”)). Following a lengthy period of discovery, launched more than a year ago,

plaintiffs Lubavitch of Old Westbury, Inc. and Rabbi Aaron Konikov and defendant Incorporated

Village of Old Westbury (“the Village”) cross-moved for summary judgment as to various

claims.

Despite voluminous filings, plaintiffs’ motion for partial summary judgment as to its

facial challenge to the Village’s Places of Worship (“POW”) Law as a deprivation of their right

to the Free Exercise of religion, DE 110 at 98-99, proves the only meritorious motion now before

the Court. The determinations made in Lubavitch I and Lubavitch II, incorporated herein by

reference, resolve many of the issues raised here. For example, Lubavitch II held “that this Court

must agree with the determination by Judge Hurley [in Lubavitch I] and find that the plaintiffs

have adequately alleged a facial challenge to the POW Law.” Lubavitch II, 2024 WL 656516, at

*4.

Discovery has been completed and nothing has materially changed. In 2024, this Court

found that, compared to the religious uses specified in the POW Law, “the Village imposes less

onerous requisites on landowners who opt to develop land for residential purposes” and

“provides far more generous provisions for many types of non-residential, commercial and

public development.” Lubavitch II, 2024 WL 656516, at *3. On a full summary judgment

record, the case for the facial infirmity of the POW Law has been strengthened. As detailed

herein, the record now available demonstrates many more ways in which the POW Law treats

religious development less favorably than comparable secular land uses. Thus, the Court grants

plaintiffs’ motion, denies defendant’s motion, and declares the POW Law facially invalid under

the United States Constitution.

Factual Background

Undisputed Facts as to the Plaintiffs’ Motion

In support of their motion, plaintiffs assert many facts, which are either undisputed, or

improperly disputed by defendant. The relevant facts fall into two categories: those

demonstrating that the provisions of the POW Law “treat any comparable secular activity more

favorably than religious exercise,” Tandon v. Newsom, 593 U.S. 61, 62 (2021), and others which

bear on the legitimacy of the Village’s asserted interests in enforcing this law, including facts

suggesting that the law was drafted to codify the Village’s resistance to the exercise of religious

freedoms.

Since 2007, or before, plaintiffs, who own more than nine acres of property in the

Village, have endeavored to develop a temple for assembly and worship. Defendant’s

Counterstatement to Plaintiffs’ 56.1 Statement, DE 250-1 ¶¶ 10-11. The property, previously the

site of a commercial nursery, is located on Glen Cove Road, upon which 32,000 vehicles travel

on an average workday. Id. ¶ 15. It is across the street from a New York State Department of

Transportation equipment transfer and maintenance yard, which stores heavy machinery

including dump trucks, salting trucks, snowplows, front loaders and cherry pickers. Id. ¶¶ 19-20.

On March 19, 2001, the Village enacted Local Law No. 4, which repealed the prior law

and adopted the POW Law at § 216-111.2 of the Zoning Code. Id. ¶¶ 50-51. The POW Law

divested the Board of Zoning Appeals of jurisdiction pertaining to religious land use applications

and vested it with the Village Board of Trustees. Id. ¶ 52. The express purpose of the POW Law

was, at least in part, to “maintain the existing character of the Village of Old Westbury as a low

density, residential community.” Id. ¶ 53. Additionally, the non-residential uses governed by

the POW Law concern projects which, if completed, would not pay property taxes to the

defendant Village, an issue that has been the subject of concerns expressed by some of its

leaders. Id. ¶ 57 (citing Ex. T5 (Carillo Tr.) at 301:25 – 302:5 (“We represent the residents.”)).

The Village issued findings with the statute that included the following:

Revised special permit standards for institutional uses such as houses of worship

and schools will help to preserve the Village’s low density residential character. In

addition, the existing standards will be enhanced to mitigate potential land use

compatibility impacts of institutional uses with residential neighborhoods. The

proposed zoning text amendments include new standards to address aesthetic,

traffic, community service and other impacts associated with increased levels of

activity related to institutional uses. . . .The proposed zoning text amendments . . .

would also help to preserve the Village’s estate character by encouraging the

preservation of existing mansions and their surrounding estate areas. . . .

The size of some institutional facilities and their associated levels of on-site activity

can have significant adverse impacts on established residential areas, especially in

relation to visual and aesthetic character. Locating not-for-profit schools and places

of worship in appropriate places will help them to function better and, at the same

time, minimize their potential impacts on tranquil residential areas.

Id. ¶ 58. The then-mayor announced that the POW Law would “regulate the growth in the

Village to minimize the impact on people who live here” and “maintain the quality of life as we

have it here.” Id. ¶ 59. That same former mayor testified:

We have attempted over the last forty years, since I have lived in the Village, to

maintain the Village in a similar manner that has been from the time that it was

incorporated back in 1929; a rural area of private homes and ninety-eight percent

of the property or ninety-five percent of the property is in private homes hands and

whenever a piece of property gets developed, it normally is for home use not for a

commercial use.

Id. ¶ 60. While defense counsel has not relied heavily on the Village’s “aesthetic” interests, it does

invoke controlling interests in “traffic, parking, noise [and] crowds,” but these legislative findings

and statements seem removed from reality. As visually demonstrated in the amended complaint,

the Lubavitch site is situated across from a state government heavy machinery yard and is a stone’s

throw away from the Northern State Parkway and the infamous Long Island Expressway, the area’s

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DE 110 § 8. The location of the site, and its proximity to major highway interchanges and

construction storage yards, belies claims relating to the “visual and aesthetic character” of the area.

The POW Law classifies places of worship as a “special exception” permitted only in the

B, BB, and B-4 Residence Districts, upon approval by the Board. /d. § 71. Places of worship are

also subject to various restrictions:

https:/Awww.nbenewyork.com/news/local/this-ny-highway-became-americas-busiest-

stretch-of-road-for-a-few-hours-on-wednesday/3419406/

Minimum Lot Size

The Zoning Code requires that places of worship have a minimum lot area of 12 acres.

Id. ¶ 74. This provision compares unfavorably with the minimum requirements required for

other property development and uses, including livestock farms (10 acres), stables, barns and

sheds for sheltering horses (one to four acres) and commercial establishments (one acre). Id. ¶¶

74-77.

Reserved Natural Land, Maximum Lot Coverage, Building Area/Volume and Parking

The POW Law requires that places of worship maintain at least 35% of their 12 acres of

lot area, and 50% of any lot area in excess thereof, in a natural, undeveloped state. Id. ¶ 78. The

law makes no such provision for other uses of property in the same residence districts. Id. ¶ 79.

Properties developed for residential use are subject to a maximum lot coverage of 25%, while the

POW Law limits places of worship to maximum lot coverage of 20% for the first 12 acres of the

total lot area and 15% of additional lot areas. Id. ¶ 80. Residential development may include a

maximum building area of between six to ten percent of the lot area; the POW law limits religious

establishments to a maximum area of four percent of the first 12 acres and three percent beyond

that. Id. ¶ 81. Relatedly, the POW Law offers a maximum permitted building volume for places

of worship, as compared to the amount of land owned, of approximately half of what is allowed

for certain secular establishments. Id. ¶ 90. Moreover, the POW Law requires substantially greater

parking areas for religious developments as compared to secular developments. Id. ¶¶ 91-95.

Locations and Frontage

The POW law limits construction of religious facilities to one of four roadways in the

Village and requires that such facilities have at least 200 feet of street frontage along one of the

roadways. Id. ¶¶ 82-83. With the sole exception of not-for-profit schools, which are also subject

to the POW law, other types of property uses are not restricted to those roadways, and are subject

to minimum frontage requirements, depending on the district, of 25, 140 or 200 feet. Jd. ¥ 84.

Minimum Yard Setbacks

The POW law subjects religious institutions to minimum yard setbacks that are

substantially more burdensome than those for non-religious uses, as set forth in the table below:

B Residence § 216-29(A)(2) 40 feet (front)

25 feet (side)

50 feet (rear)

BB Residence § 216-17(A)(1) 75 feet (front)

50 feet (side)

50 feet (rear)

POW Law § 216-111.2(D) 200 feet (front)

125 feet (side)

125 feet (rear)

Id. J 86. Commercial establishments developed in the Business A district are subject to a

setback of only 25 feet. /d. 987. Asa result of such differential treatment, it is undisputed that

“ijn the B and BB Residence Districts, a pit of manure may be located closer to the property line

than a place of worship.” Jd. {| 88.

Maximum Building Height

The POW Law limits the maximum building height of a place of worship to 25 feet. Id. ¶

89. Meanwhile, the zoning restrictions appear far more generous toward other types of

development, with principal residences, private golf clubs and commercial horse stables

allocated maxima of 35 feet, plus accessory buildings of 20 to 25 feet. Id. The only buildings

subject to a less generous height limitation identified by the Village are restaurants, which are

restricted to a maximum height of 20 feet. Id. ¶ 89.

The building height restriction gives rise to a curious factual issue. Throughout its

filings, the Village invokes the recommendations of Frederick P. Clark Associates (“Clark

Associates”), a consulting firm upon which it allegedly relied to draft the subject statute. DE 250

at 23 (describing the company as “the Village’s land use planner”). Clark Associates drafted two

documents: a “Draft Generic Environmental Impact Statement (“DGEIS”) to address the reasons

for, and effects of, the proposed amendments,” and “a Final Generic Environmental Impact

Statement (“FGEIS”) [which] included responses to public comments at the hearing concerning

the purpose and reasons for the recommended amendments.” DE 248-1 at 11 (citing Ex. 5 to

Carillo Aff). An individual named David Portman principally drafted these documents, DE 249-

31 at 5, and is described—apparently without significant objection—as “the principal drafter of

the POW Law and the Village’s chief land use planner for 19 years at the time of its adoption.”

DE 250-1, ¶ 111. Portman provided crucial testimony in connection with the height restriction

contained in the POW law:

There's what I consider somewhat of an anomaly in the Village's code, historically,

because residences are permitted a 35-foot maximum height, and non-residential

uses are permitted a 25-foot height. And one of the things that, you know, in terms

of making this more accommodating to schools and places of worship, I

recommended that the permitted height for non-residential uses go to either 35 or

45 feet. I forget which I recommended. There was a draft with that. The Village

board determined that it should remain at 25 feet, and then they would use their

flexibility to increase it and would give them greater leverage, authority with

respect to these uses to allow them to go to a greater height, maybe, in exchange

for greater screening or increased setback or something like that.

So they wanted to keep it at 25 feet. So [ ] they didn't follow our recommendation

down the line.

DE 249-31 at 10. Relatedly, a former mayor described the POW Law as a negotiating weapon

wielded against religious groups. DE 250-1, ¶ 113 (“We’ve made deals with other religious

organizations and it’s in negotiation. Try to get what you can. You can’t, you can’t.”).

Defendant does not dispute that Portman so testified. Rather, counsel for defendant

attempts to conjure an argument from the ether suggesting that Portman’s testimony is

inadmissible under Federal Rule of Evidence (“Fed. R. Evid.”) 804(b), consistently mis-cited by

defense counsel as part of the Federal Rules of Civil Procedure (“Fed. R. Civ. P.”).2 This

argument rests on the specious claim that while such testimony might be admissible for the

purposes of the instant motions if Portman was unavailable, plaintiffs have not made the

requisite showing. DE 250 at 23 (arguing plaintiffs cannot rely on Portman’s “possible (yet

unproven) unavailability.”). Yet, it is undisputed that Mr. Portman, an 86-year-old Florida

resident, has been suffering from progressing Parkinson’s Disease for more than a decade. DE

250-1 ¶ 115. In a related action in 2016, the Village represented to another federal judge in this

district that travelling to New York for trial would, according to his doctors, be detrimental for

Mr. Portman, and sought leave to obtain trial testimony from Portman in Florida. Id. ¶¶ 118-19.

The Village’s argument ignores the evidentiary standard applicable to a motion for

summary judgment. Both sides here seek summary judgment, which necessarily requires

assessment of undisputed or indisputable facts without trial. Thus, by definition, evidence relied

2 See DE 250 at pp. 7 and 23.

on – deposition transcripts, documents, declarations and the like – frequently represent some

form of hearsay, as in each instance, the materials constitute “statement(s) that the declarant does

not make while testifying at the current trial or hearing.” Fed. R. Evid. 801(c)(1). Thus, as the

Second Circuit has repeatedly held, “[m]aterials submitted in support of or in opposition to a

motion for summary judgment ‘must be admissible themselves or must contain evidence that

will be presented in admissible form at trial.’” Delaney v. Bank of Am. Corp., 766 F.3d 163,

169-70 (2d Cir. 2014) (emphasis added)3 (quoting Santos v. Murdock, 243 F.3d 681, 683 (2d Cir.

2001) (“Affidavits submitted to defeat summary judgment must be admissible themselves or

must contain evidence that will be presented in an admissible form at trial.”)). Indeed, Rule 56

explicitly provides that “[a] party may object that the material cited to support or dispute a fact

cannot be presented in a form that would be admissible in evidence.” Fed. R. Civ. P. 56(c).

Applying this principle, in Picard Tr. for SIPA Liquidation of Bernard L. Madoff Inv. Sec. LLC

v. JABA Assocs. LP, 49 F.4th 170, 181 n.6 (2d Cir. 2022), the Second Circuit ruled that the fact

that a movant for summary judgment “must lay the proper foundation at trial to admit the content

of [a] form under Federal Rule of Evidence 703 [ ] does not make it inadmissible hearsay.”

Thus, the Court’s role at this juncture is to “determine the likely admissibility of the

hearsay evidence offered by a party.” Unicorn Crowdfunding, Inc. v. New St. Enter., Inc., 507 F.

Supp. 3d 547, 571 (S.D.N.Y. 2020) (internal quotation omitted). Here, notwithstanding

counsel’s ill-considered sophistry, the record shows that an offer of Portman’s deposition

testimony overcomes the defendant’s hearsay objection. First, such testimony appears

admissible under the provisions of Fed. R. Civ. P. 32(a)(8). Even adopting defendant’s

3 Remarkably, Delaney, which undermines defendant’s position, is the only case citation offered

in support of its misleading argument. DE 250 at 23.

unavailability analysis, its seems that Portman likely would be unavailable due to medical

conditions or simply due to his distance from the Courthouse, rendering his deposition testimony

admissible. In the unlikely event that he was available, he could testify to the material contained

in his deposition. Other avenues, including the possibility of testifying via Zoom, also lead to

likely admissibility. Thus, to the extent relevant, Portman’s testimony may be considered on this

motion.4

Discussion

As the Second Circuit recently reaffirmed:

The First Amendment provides that the government “shall make no law respecting

an establishment of religion, or prohibiting the free exercise thereof.” U.S. Const.

amend. I; see Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S. Ct. 900, 84 L.Ed.

1213 (1940) (incorporating the Free Exercise Clause against the states). It is well

established that discrimination against religion is “odious to our Constitution.”

Trinity Lutheran Church of Columbia, Inc. v. Comer, ––– U.S. ––––, 137 S. Ct.

2012, 2025, 198 L.Ed.2d 551 (2017).

The Free Exercise Clause protects both an individual's private right to religious

belief and “the performance of (or abstention from) physical acts that constitute the

free exercise of religion,” including “‘assembling with others for a worship

service.’” Cent. Rabbinical Cong. of U.S. & Can. v. N.Y.C. Dep't of Health &

Mental Hygiene, 763 F.3d 183, 193 (2d Cir. 2014) (quoting Emp. Div., Dep't of

Hum. Res. of Or. v. Smith, 494 U.S. 872, 877, 110 S. Ct. 1595, 108 L.Ed.2d 876

(1990)). This protection “does not relieve an individual of the obligation to comply

with a valid and neutral law of general applicability,” Smith, 494 U.S. at 879, 110

S. Ct. 1595 (internal quotation marks omitted), and such a neutral and generally

applicable policy is subject to only rational-basis review, Cent. Rabbinical Cong.,

763 F.3d at 193. Official action “burdening religious conduct that is not both

neutral and generally applicable, however, is subject to strict scrutiny.” Id.

4 On this record, defendant’s argument goes beyond unmeritorious, straying into the realm of

improper and obstructive. For example, counsel’s assertion that the Carrillo testimony that “Mr.

Portman is the expert” and “[w]hatever he says goes,” seems “unrelated” to the Village’s

override of its expert’s opinion to gain leverage in negotiations with religious organizations, DE

250-1, ¶ 112, stands as a monument to disingenuity.

Agudath Israel of Am. v. Cuomo, 983 F.3d 620, 631 (2d Cir. 2020). The Supreme Court has

clarified, however, that:

government regulations are not neutral and generally applicable, and therefore

trigger strict scrutiny under the Free Exercise Clause, whenever they treat any

comparable secular activity more favorably than religious exercise. Roman

Catholic Diocese of Brooklyn v. Cuomo, 592 U. S. ––––, –––– – ––––, 141 S. Ct.

63, 67-68, 208 L.Ed.2d 206 (2020) (per curiam). It is no answer that a State treats

some comparable secular businesses or other activities as poorly as or even less

favorably than the religious exercise at issue. Id., at –––– – ––––, 141 S. Ct., at 66-

67 (Kavanaugh, J., concurring).

Tandon v. Newsom, 593 U.S. 61, 62 (2021). Plaintiffs’ motion is limited to a facial challenge to

the POW Law. As Judge Hurley observed, “a facial challenge to a law or ordinance considers

only the text of the law or ordinance itself, not its application to the particular circumstances of

an individual.” Lubavitch I, 2021 WL 4472852, at *11 (cleaned up).

Defendant quarrels about whether the other preferred uses discussed above – including

residential developments, private golf clubs, commercial establishments, restaurants, commercial

horse stables and livestock farms – are comparable for making this determination. The Supreme

Court has held that “whether two activities are comparable for purposes of the Free Exercise

Clause must be judged against the asserted government interest that justifies the regulation at

issue,” adding “[c]omparability is concerned with the risks various activities pose, not the

reasons why people gather.” Tandon, 593 U.S. at 62. Here, the Village cites a laundry list of

interests, many without explication, including “traffic, parking, noise, crowds and effect on water

and sewage services.” DE 248-1 at 24. Little evidence is offered by the Village concerning the

nature of the risks to these generalized (and largely uncompelling) interests posed by the varying

uses. For example, farms and commercial horse stables may pose equal if not far greater risks to

water and sewage services than religious buildings. Traffic, parking, noise and crowd issues

created by restaurants and commercial establishments certainly seem comparable to those

presented by houses of worship. And yet, in nearly every instance, religious institutions are

treated less favorably under the statute.

As the POW Law cannot be said to be a “neutral law of general applicability,” strict

scrutiny review shifts the burden to the defendant “to show that the religious exercise at issue is

more dangerous than those activities even when the same precautions are applied,” and “narrow

tailoring requires the government to show that measures less restrictive of the First Amendment

activity could not address its interest(s).” Tandon, 593 U.S. at 63. Here, the Village does not, as

it really cannot, make any such showing.5 For example, the discriminatory height restriction

placed on religious structures, which is less favorable than nearly any other land use permitted by

the Village, is presented without legitimate justification. The record is replete with other

examples: there is no proffered rationale, nor can one reasonably be imagined, that explains the

Village’s requirement that a restaurant have one parking space for every three customers, while a

religious assembly need provide one space for every two congregants. And the differential

treatment of religious institutions in such matters as minimum acreage, setbacks, reserved land,

frontage and building area seem unrelated to any legitimate interest proffered by the Village and

certainly fail a narrow tailoring analysis.

The undisputed and indisputable facts render it beyond doubt that the POW Law treats

comparable secular activities more favorably than religious exercise, and thus its restrictions

trigger strict scrutiny. Id. Despite the inclusion of private schools in the legislation, and the

Village’s references to land uses that are prohibited by its zoning code, such arguments fail, as

the Village undeniably “treats some comparable secular businesses or other activities as poorly

5 Defendant is not alone in this regard. One scholar identified fifteen efforts to satisfy strict

scrutiny, and all failed. Adam Winkler, Fatal in Theory and Strict in Fact: An Empirical

Analysis of Strict Scrutiny in the Federal Courts, 59 Vanderbilt Law Review 793, 861-62 (2006).

as or even less favorably than the religious exercise at issue,” and cannot avoid strict scrutiny

review. Id.; see Lubavitch II, 2024 WL 656516, at *3 (“the Trustees could have, just as easily,

created an amendment affecting the construction of religious edifices and, say, iron smelting

facilities, which would have almost certainly created a favorable comparison.”).

Remarkably, counsel for defendant shamelessly asserts that the POW Law was subject to

“an independent assessment [ ] by the District Court [which found it] was a neutral and generally

applicable law and constitutional [and] did not proscribe more religious conduct than necessary.”

DE 250 at 27. Counsel’s only support for this extraordinary proposition is a citation to Roman

Catholic Diocese of Rockville Center v. Incorporated Village of Old Westbury, 128 F. Supp. 3d

566 (E.D.N.Y. 2015), a case cited throughout defendant’s papers. This argument ignores, as

though it did not exist, the lengthy analysis in Lubavitch II distinguishing the Diocese of

Rockville Center decision and holding it inapplicable to this action. 2024 WL 656516, at *3–4. 6

Moreover, as noted in Lubavitch II, intervening law in this area raises additional questions about

the continuing viability of the Diocese of Rockville Center decision. Compare Tandon, 593 U.S.

at 62 (“government regulations are not neutral and generally applicable, and therefore trigger

strict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular

activity more favorably than religious exercise”) with Diocese of Rockville Center, 128 F. Supp.

3d at 581 (“the POW Law does not apply exclusively to Plaintiff or the Roman Catholic religion,

but applies equally to all religious institutions.”).

In considering the Village’s showing in connection with a strict scrutiny review, the only

evidence the defendant relies upon is the review conducted by Clark Associates. See, e.g., DE

6 That counsel packs some of this argument into a footnote does not mean that it would go

unnoticed. DE 250 at 27, n. 23.

248-1 at 19-20, (quoting Statement of Christian Miller (claiming the purpose of study was “to

deal with the issue of the recent proliferation of institutional development applications in the

Village”)); id. at 20 (representing that “the 12-acre minimum and 20% coverage area for places

of worship were based on studies conducted by Clark.”). Yet, the Clark study offers the Village

no refuge given that the Portman testimony reveals instances in which the Village opted to

ignore Clark Associates’ recommendations without legitimate reason. Disgracefully, the

indisputable evidence demonstrates that the Village opted to disregard the recommendations

concerning building height to gain leverage in negotiations with religious organizations.

In short, the POW law adopted by the Village of Old Westbury unconstitutionally

discriminates against the free exercise of religion and is therefore facially invalid. As the Court

finds the statute facially invalid on these grounds, it need not reach plaintiffs’ remaining facial

claims.

Defendant’s Motion for Summary Judgment

Given the irresponsible and misleading arguments lodged by defense counsel in its

filings, which border on contumacious, the Court considered striking the defendant’s motion.

However, considering the seeming interminability of this case, the motion will be resolved if

only to avoid further delay. Furthermore, despite weighty submissions, defendant’s motion can

be easily dispatched.

First, the Village argues that plaintiffs lack standing to bring the subject land-use claims,

principally pointing to flaws in the application efforts made by plaintiffs. This argument,

however, was explored and rejected as part of Judge Hurley’s review of the larger ripeness issue.

Lubavitch I, 2021 WL 4472852, at *11, (citing Charette v. Town of Oyster Bay, 159 F.3d 749,

757 (2d Cir. 1998) (“Charette ha[s] made no effort to apply for a permit for the Raven's Nest,”

which “does not, of course, deprive him of standing to assert that the Code is facially invalid.”)).

The defendant’s argument is predicated solely on the plaintiffs’ failure to present “not only an

application but a denial . . . to demonstrate that the injury is not conjectural.” DE 248-1 at 5

(emphasis in original). Yet Judge Hurley directly rejected this line of argument, a decision

which defendant continues to flout. Lubavitch I, 2021 WL 4472852, at *15 (“under the

circumstances alleged, a final decision is not necessary to evaluate the saga of Plaintiffs’ land-

use application.”).

Second, the Village argues that the POW Law is not facially invalid. It is, as fully

discussed above.

Third, the Village asserts that it is entitled to summary judgment as to plaintiffs’ as-

applied claims. On this issue, Judge Hurley held years ago that “the land-use procedures

[p]laintiffs have endured are not just merely frustrating but unfair and unreasonable.” Lubavitch

I, 2021 WL 4472852, at *13. At this juncture, plaintiffs have set forth sufficient material issues

of fact that overcome defendant’s summary judgment motion.

Thus, defendant’s motion for summary judgment is denied in its entirety.

Conclusion

It has been almost seventeen years since this matter was filed. In its last major decision

in this case, this Court declared as follows:

The allegations raise serious issues of constitutional magnitude, and this matter has

lingered far too long. That ends now. Counsel will be expected to work diligently

to bring this matter to resolution—in whatever form that might occur—with all

deliberate speed. [ ]

Given the unthinkable amount of time (and money) already spent on this case and

related litigation, along with the vast record already available to the parties, this

matter will be returned to Judge Dunst to supervise discovery. The parties are

directed to meet and confer to establish a discovery schedule that will conclude in

no longer than nine months from the date of this Opinion. At that juncture, unless

the matter is settled, the parties should be prepared to proceed with summary

judgment or trial, as appropriate.

Lubavitch II, 2024 WL 656516, at *6. Two more years of litigation, and the matter remains at

this unsatisfactory juncture: the Court has now determined that the Village enacted a

discriminatory law in violation of the United States Constitution. Plaintiffs still have been

unable to construct their Chabad. Still more legal battles, costs and delays lie ahead.7

It would behoove all involved to work together to reach a satisfactory resolution of this

matter. Given its history, the undersigned cannot reasonably hold out much hope. As such, this

matter will be set for a conference on December 3, 2025 at 10:00 a.m. Parties and their

representatives will be required to attend. At that conference, a trial date will be set.

No adjournments will be granted.

SO ORDERED.

Dated: Central Islip, New York

October 30, 2025

/s/ Gary R. Brown

GARY R. BROWN

United States District Judge

7 These difficult determinations may include a review of plaintiffs’ claims for damages. While

plaintiffs’ expert report was not presented to this Court on this motion, other submissions

suggests that there may be highly contestable calculations contained therein. In a summary

presented by plaintiffs as to issues to be presented to the jury, counsel represents that “from 1999

to 2020 [plaintiffs] lost more than $15 million in pledged donor commitments,” while “Rabbi

Konikov’s lost earnings and benefits . . . exceed $5 million.” DE 251-1. As these figures

include a time frame that predates the filing of litigation by nearly a decade, may well include

speculative matters and, at a high level, would suggest double-counting, it is clear that, should

the litigation proceed to that stage, the risks and costs will be substantial.