1

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. 

1 At a stated term of the United States Court of Appeals for 

2 the Second Circuit, held at the Thurgood Marshall United States 

3 Courthouse, 40 Foley Square, in the City of New York, on the 

23rd 4 day of March, two thousand sixteen. 

5 

6 PRESENT: DENNIS JACOBS, 

7 PETER W. HALL, 

8 Circuit Judges 

JANE A. RESTANI,1 9 

10 Judge.

11 

12 - - - - - - - - - - - - - - - - - - - -X 

13 RABBI JAMES BERNSTEIN, MOSHE AMBERS, 

14 BEATRICE ZAKS, SIMA ZAKS, NAFTOLI 

15 TESHER, MOSDOS CHOFETZ CHAIM, INC., 

16 Plaintiffs-Appellants, 

17 

18 YESHIVA CHOFETZ CHAIM, INC., RABBI 

19 MAYER ZAKS, RABBI ARYEH ZAKS, RABBI 

20 NAFTOLI SOFER, MILTON B. SHAPIRO, SONYA 

21 SHAPIRO, THE TOWN BOARD OF THE TOWN OF 

22 RAMAPO, 

23 Plaintiffs, 

24 

 

1

 Honorable Jane A. Restani, Judge for the United States Court of 

International Trade, sitting by designation. 
2

1 -v.- 15-1192 (Lead) 

2 15-1195 (Con) 

3 

4 THE VILLAGE OF WESLEY HILLS, THE MAYOR 

5 AND BOARD OF TRUSTEES OF THE VILLAGE OF 

6 WESLEY HILLS, ROBERT H. FRANKL, in his 

7 official capacity, DAVID A GOLDSMITH, 

8 in his official capacity, ROBERT I. 

9 RHODES, in his former official 

10 capacity, JAY B. ROSENSTEIN, in his 

11 former official capacity, EDWARD B. 

12 MCPHERSON, in his official capacity, 

13 THE VILLAGE OF POMONA, THE MAYOR AND 

14 BOARD OF TRUSTEES OF THE VILLAGE OF 

15 POMONA, THE VILLAGE OF CHESTNUT RIDGE, 

16 THE MAYOR AND BOARD OF TRUSTEES OF THE 

17 VILLAGE OF CHESTNUT RIDGE, THE VILLAGE 

18 OF MONTEBELLO, THE MAYOR AND BOARD OF 

19 TRUSTEES OF THE VILLAGE OF MONTEBELLO, 

20 Defendants-Appellees. 

21 

22 THE VILLAGE OF NEW HEMPSTEAD, THE MAYOR 

23 AND BOARD OF TRUSTEES OF THE VILLAGE OF 

24 NEW HEMPSTEAD, ROBERT A. MOSKOWITZ, 

25 TRSUTEE OF THE VILLAGE OF NEW 

26 HEMPSTEAD, in his individual and former 

27 official capacity, FORMER MAYOR 

28 HERBERT I. MARSHALL, in his individual 

29 and former official capacity, MAYOR OF 

30 POMONA NICHOLAS L. SANDERSON, in his 

31 individual and official capacity, JOHN 

32 DOE 1-37, JEROME KOBRE, MAYOR OF THE 

33 VILLAGE OF CHESTNUT RIDGE, in his 

34 individual and official capacity, 

35 TRUSTEE HOWARD L. COHEN, in his 

36 individual and official capacity, 

37 KATHRYN ELLSWORTH, FORMER MAYOR OF 

38 MONTEBELLO, in her individual and 

39 former official capacity, MAYOR OF 

40 MONTEBELLO JEFFREY OPPENHEIM, in his 

41 individual and official capacity, 

42 SCENIC DEVELOPMENT, LLC, TOWN OF 
3

1 RAMAPO, THE PLANNING BOARD OF THE TOWN 

2 OF RAMAPO, THE BOARD OF APPEALS OF THE 

3 TOWN OF RAMAPO, 

4 Defendants. 

5 

6 - - - - - - - - - - - - - - - - - - - -X 

7 

8 FOR APPELLANTS: JOSEPH J. HASPEL, Goshen, NY. 

9 

10 FOR VILLAGES APPELLEES: MICHAEL D. ZARIN (Jody T. Cross, on 

11 the brief), Zarin & Steinmetz, 

12 White Plains, NY. 

13 

14 FOR POMONA APPELLEES: GREGORY R. SARACINO, Milber Makris 

15 Plousadis & Seiden, LLP, White 

16 Plains, NY. 

17 

18 Appeal from a judgment of the United States District Court 

19 for the Southern District of New York (Karas, J.). 

20 

21 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND 

22 DECREED that the judgment of the district court be AFFIRMED. 

23 

24 Plaintiffs-appellants, religious organizations and 

25 affiliated individuals (collectively, the “Mosdos 

26 Plaintiffs”), appeal from the judgment of the United States 

27 District Court for the Southern District of New York (Karas, 

28 J.) granting summary judgment dismissing their discrimination 

29 complaint against villages and current and former officials for 

30 those villages (collectively, the “Villages Defendants”). We 

31 assume the parties’ familiarity with the underlying facts, the 

32 procedural history, and the issues presented for review. 

33 The Mosdos Plaintiffs are affiliated with the Chofetz Chaim 

34 sect of Orthodox Judaism and reside in the Town of Ramapo, New 

35 York (the “Town”). The Villages Defendants are incorporated 

36 villages located within the Town, and various associated 

37 officials. In 2001, the Town initiated a review of its local 

38 zoning laws, and in 2004, passed the Adult Student Housing Law 

39 (“ASHL”) to permit the construction and operation of adult 

40 student living facilities in certain residential zones. 

41 Pursuant to the ASHL, predecessors to the Mosdos Plaintiffs 
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1 applied for site plan approval for the construction of an adult 

2 student housing facility (“Kiryas Radin”) on a property (the 

3 “Nike Site”) located near the Villages Defendants. As was 

4 required by New York’s State Environmental Quality Review Act 

5 (“SEQRA”), the Town’s Planning Board conducted an analysis on 

6 the impact the construction of Kiryas Radin would have on the 

7 environment and concluded that it would not be significantly 

8 adverse. Accordingly, the Town’s Planning Board cleared the 

9 Mosdos Plaintiffs to build Kiryas Radin on the Nike Site. 

10 As the Town’s Planning Board finished its SEQRA review, a 

11 subset of the Villages Defendants filed a lawsuit in New York 

12 state court to challenge the ASHL and the Town Planning Board’s 

13 SEQRA analysis (the “SEQRA Action”). In response, the Mosdos 

14 Plaintiffs filed counterclaims under 42 U.S.C. § 1983 alleging 

15 violations of the Free Exercise and Free Speech clauses of the 

16 First and Fourteenth Amendments, the Fair Housing Act, and the 

17 Religious Land Use and Institutionalized Persons Act. 

18 While the parties litigated the SEQRA Action, the Mosdos 

19 Plaintiffs also filed a new action in federal court against the 

20 Villages Defendants, bringing claims under 42 U.S.C. §§ 1981, 

21 1982, 1983, and 1985(3) alleging violations of the Free 

22 Exercise, Establishment, and Free Association clauses of the 

23 First and Fourteenth Amendments, the Equal Protection Clause 

24 of the Fourteenth Amendment, the Fair Housing Act, and various 

25 state laws (the “Equal Protection Action”). The core 

26 allegation in the Equal Protection Action was that the Villages 

27 Defendants filed the SEQRA Action for discriminatory reasons. 

28 On March 31, 2010, the district court dismissed all of the 

29 Mosdos Plaintiffs’ claims in the Equal Protection Action on the 

30 ground that the Villages Defendants were entitled to qualified 

31 immunity. Mosdos Chofetz Chaim, Inc. v. Village of Wesley 

32 Hills, 701 F. Supp. 2d 568, 604 (S.D.N.Y. 2010) (Mosdos I). The 

33 district court’s analysis turned on applying the 

Noerr-Pennington doctrine2 34 to the Mosdos Plaintiffs’ civil 

35 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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1 Plaintiffs to make out a discrimination claim based on the 

2 filing of the SEQRA Action, they had to allege that (i) they 

3 were selectively treated compared with others similarly 

4 situated, and (ii) the selective treatment was motivated by an 

5 intention to discriminate on the basis of, inter alia, religion. 

6 Id. at 603. Because the initial complaint failed to allege 

7 facts to show that similarly situated properties were treated 

8 differently, the district court dismissed the complaint without 

9 prejudice. 

10 On September 26, 2011, the district court granted in part 

11 and denied in part the Villages Defendants’ motion to dismiss 

12 the amended complaint in the Equal Protection Action. Mosdos 

13 Chofetz Chaim Inc. v. Village of Wesley Hills, 815 F. Supp. 2d 

14 679, 683 (S.D.N.Y. 2011) (Mosdos II). The district court 

15 concluded that the Mosdos Plaintiffs had adequately specified 

16 six similarly situated sites that the Villages Defendants did 

17 not treat the same as the Nike Site, that is, the Villages 

18 Defendants did not file a lawsuit to block the development on 

19 those sites. Id. at 700-04. Accordingly, discrimination 

20 claims against the Villages Defendants proceeded to discovery. 

21 Meanwhile, the SEQRA Action continued. Though the subset 

22 of the Villages Defendants litigating the SEQRA Action 

23 persuaded a state court to grant them a preliminary injunction 

24 and temporary restraining order against the Kiryas Radin 

25 construction, their claims were eventually dismissed on the 

26 merits. As a result, on December 5, 2012, the Mosdos Plaintiffs 

27 removed the SEQRA Action to federal court to pursue their 

28 counterclaims; there, it was consolidated with the Equal 

29 Protection Action. 

30 On March 27, 2015, the district court granted summary 

31 judgment to the Villages Defendants on the Mosdos Plaintiffs’ 

32 claims in the Equal Protection Action and their counterclaims 

33 in the SEQRA Action. Bernstein v. Village of Wesley Hills, 95 

34 F. Supp. 3d 547, 551 (S.D.N.Y. 2015) (Mosdos III). The district 

35 court concluded that the Mosdos Plaintiffs failed to produce 

36 evidence sufficient to raise a genuine issue of material fact 

37 as to similarly situated sites that were treated differently 

38 or as to whether the Villages Defendants acted out of 

39 discriminatory animus. The district court also rejected the 
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1 Mosdos Plaintiffs’ argument that they had a valid RLUIPA claim 

2 based on this Court’s opinion in Fortress Bible Church v. 

3 Feiner, 694 F.3d 208 (2d Cir. 2012). In this appeal, the Mosdos 

4 Plaintiffs challenge only the determination that they failed 

5 to present sufficient evidence to sustain their discrimination 

6 claims against the Villages Defendants. 

7 We review de novo a district court’s grant of summary 

8 judgment. Noll v. Int’l Bus. Mach. Corp., 787 F.3d 89, 93 (2d 

9 Cir. 2015). Summary judgment must be granted if “there is no 

10 genuine dispute as to any material fact and the movant is 

11 entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 

12 “In assessing the record to determine whether there is a genuine 

13 issue as to any material fact, the court is required to resolve 

14 all ambiguities and draw all factual inferences in favor of the 

15 party against whom summary judgment is sought.” Noll, 787 F.3d 

16 at 94 (internal brackets and citation omitted). A genuine 

17 issue of material fact is one that “might affect the outcome 

18 of the suit under the governing law” and as to which “a 

19 reasonable jury could return a verdict for the nonmoving party.” 

20 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 

21 1. As an initial matter, the Mosdos Plaintiffs do not 

22 appeal from Mosdos I or Mosdos II. Their Pre-Argument 

23 Statement (Form C) states that they are only appealing from a 

24 summary judgment order and that the only issues raised on appeal 

25 are those that concern the summary judgment opinion in Mosdos 

26 III. The Mosdos Plaintiffs’ brief represents that the only 

27 issue presented is whether the district court properly granted 

28 summary judgment for the Villages Defendants, and the only 

29 opinion included in the Mosdos Plaintiffs’ Special Appendix is 

30 Mosdos III. The Villages Defendants argue at length in their 

31 brief that the Mosdos Plaintiffs are not appealing from Mosdos 

32 I or Mosdos II and the Mosdos Plaintiffs do not rebut this 

33 contention in their reply. Accordingly, we lack jurisdiction 

34 to review the district court’s opinions in Mosdos I and Mosdos 

35 II. See Shrader v. CSX Transp., Inc., 70 F.3d 255, 256 (2d Cir. 

36 1995). The remaining issue before us is whether the district 

37 court properly granted summary judgment for the Villages 

38 Defendants. We assume without deciding that the district 

39 court’s Noerr-Pennington-based analysis for determining 
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1 whether the Villages Defendants are entitled to qualified 

2 immunity, detailed in Mosdos I and Mosdos II, is correct. 

3 2. Turning to Mosdos III, the district court’s thorough 

4 and well-reasoned opinion demonstrated that the Mosdos 

5 Plaintiffs failed to produce evidence sufficient for a jury 

6 finding either that (i) there were similarly situated sites or 

7 (ii) the Villages Defendants acted out of discriminatory 

8 animus. Kiryas Radin is a residential complex containing sixty 

9 residential units at a density of 12.8 units per acre and a 

10 number of non-residential buildings. The Nike Site sits on a 

11 two-lane road of low-to-moderate capacity, is surrounded by a 

12 low-density residential district that contains mostly single 

13 family homes, and is approximately one mile from the nearest 

14 commercial development. The Mosdos Plaintiffs failed to 

15 provide credible evidence that any of the purported comparable 

16 sites were similarly situated, e.g., that they had a similar 

17 impact on traffic and community character, or that the Villages 

18 Defendants knew of the comparable sites before they were built. 

19 The Mosdos Plaintiffs also failed to offer evidence that the 

20 Villages Defendants were driven by discriminatory animus in 

21 bringing the SEQRA Action. Rather, there is no real dispute 

22 that the Villages Defendants were motivated by a genuine concern 

23 that the ASHL and Town’s SEQRA analysis would result in adverse 

24 effects on the environment. Accordingly, we conclude that the 

25 Villages Defendants are entitled to qualified immunity on the 

26 Mosdos Plaintiffs’ claims and counterclaims. 

27 The Mosdos Plaintiffs raise one additional issue. They 

28 assert that Fortress Bible provides them with either a cause 

29 of action or a theory of discrimination that sustains their 

30 claims. It does neither. Fortress Bible concerned a 

31 municipality abusing the SEQRA review process as a vehicle for 

32 executing its zoning regulations in connection with a church’s 

33 land use proposal for a site located within that municipality’s 

34 jurisdiction. Here, the Villages Defendants – none of which 

35 had jurisdiction over the Nike Site or Kiryas Radin project – 

36 filed a lawsuit to challenge some other municipality’s SEQRA 

37 review. Fortress Bible is inapposite. 
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1 Accordingly, and finding no merit in Mosdos Plaintiffs’ 

2 other arguments, we hereby AFFIRM the judgment of the district 

3 court. 

4 FOR THE COURT: 

5 CATHERINE O’HAGAN WOLFE, CLERK