New Creation Fellowship of Buffalo v. Town of Cheektowaga

Full title: NEW CREATION FELLOWSHIP OF BUFFALO, STEPHEN J. ANDZEL, Pastor, and STEPHEN…

Court: United States District Court, W.D. New York

Date published: Jul 2, 2004

No. 99-CV-460A(F) (W.D.N.Y. Jul. 2, 2004)

Opinion

No. 99-CV-460A(F).

July 2, 2004

THE GUCCIARDO LAW FIRM, BRIAN W. RAUM, of Counsel, New York, New York, Attorneys for Plaintiffs.

BREWER, BREWER, ANTHONY MIDDLEBROOK, DENNIS BREWER, SR., MONIKA MANOR, of Counsel, Irving, Texas, Attorneys for Plaintiffs.

DAMON MOREY, JOSEPH J. SCHOELLKOPF, JR., MARYLOU K. ROSHIA, of Counsel, Buffalo, New York, Attorneys for Defendants.

REPORT and RECOMMENDATION

LESLIE FOSCHIO, Magistrate JudgePage 2

JURISDICTION

This case was referred to the undersigned by Honorable Richard J. Arcara on November 29, 2001 for all pretrial proceedings.¹ The matter is presently before the court on Defendants' motion for summary judgment and dismissal of the action filed on November 15, 2001 (Doc. No. 12).

1 The matter was previously referred to the Honorable Edmund F. Maxwell, a Magistrate Judge of this court who died November 15, 2001.

BACKGROUND

Plaintiffs are New Creation Fellowship of Buffalo ("the Fellowship"), a not for profit religious corporation, located at 3325 Genesee Street, Cheektowaga, New York, the Fellowship's pastor Stephen J. Andzel ("Andzel"), and Stephen L. Grant, one of two of the Fellowship's Head Administrators ("Grant") ("Plaintiffs"). Plaintiffs Andzel and Grant sue only in their official capacities. Complaint ¶¶ 8, 9. Defendants include the Town of Cheektowaga ("the Town"), the Town's Board of Assessment Review ("Board of Assessment Review" or "the Board"), the Town Assessor William R. Conway ("Conway"), the Town Building Inspector Supervisor Ronald Marten ("Marten"), and the Town Building Inspector Daniel Ulatowski ("Ulatowski") ("Defendants"). Conway, Marten and Ulatowski are sued in their individual and official capacities. Complaint ¶¶ 12-14.

Plaintiffs commenced this civil rights action pursuant to 42 U.S.C. § 1983 on July 7, 1999, asserting seven causes of action seeking compensatory and punitive damages, as well as injunctive and declaratory relief. Specifically, Plaintiffs assert violations of their First Amendment rights to free religious exercise ("First Cause of Action"), Complaint ¶¶ 31-34, free speech and association ("Second Cause of Action"), Complaint ¶¶ 35-38, a violation of the Fourteenth Amendment's Equal Protection Clause based on selective enforcement ("Third Cause of Action"), Complaint ¶¶ 39-43, and a "hybrid" claim based on violation of Plaintiffs' federal constitutional rights to free exercise of religion, free speech, and free association ("Fourth Cause of Action"), Complaint ¶¶ 44-46. Invoking the court's supplementary jurisdiction pursuant to 28 U.S.C. § 1367(a), Plaintiffs also allege Defendants' actions violated similar rights protected under the New York State Constitution. Particularly, Plaintiffs assert violations of the New York Constitution Article I, Section 3 (protecting free exercise of religion) ("Fifth Cause of Action"), Complaint ¶¶ 47-51, Article I, Section 8 (protecting freedom of speech and association) ("Sixth Cause of Action"), Complaint ¶¶ 52-55, and Article I, Section 11 (protecting against religious and racial discrimination) ("Seventh Cause of Action"), Complaint ¶¶ 56-60.

In general, Plaintiffs challenge Defendants' enforcement of the Town's Building Code and zoning law requirements, particularly the Town's Tree Preservation Ordinance, against them. Specifically, Plaintiffs allege interference with the use of the Fellowship's undeveloped property at 3125 Genesee Street ("3125 Genesee Street," "the property," or "the site"), located adjacent to the Fellowship's meeting building ("the Fellowship's church" or the "Fellowship's church building"), located at 3325 Genesee Street, and used by the Fellowship in connection with the Fellowship's religious programs as alleged. Plaintiffs also challenge the denial of a real property tax exemption under New York state law by Conway, the Board and the Town for 1995, 1998, 1999, 2000 and 2001 for 3125 Genesee Street because of Defendants' alleged antipathy toward the Fellowship's religion and its ministry to racial and ethnic minorities. Complaint ¶¶ 16, 20 a, 20 b, 27, 32. Plaintiffs further claim Defendants maintained an official policy of discriminating against the Fellowship's religious beliefs and practices, and caused disruptions of the Fellowship's religious services conducted at the Fellowship's church. Complaint ¶¶ 18, 19, 33. Plaintiffs also accuse Defendants of creating a "public climate" of racial and religious hostility which led to the filing of police complaints by local residents of the Town against the Fellowship, and acts of vandalism and graffiti by unnamed persons including local residents inflicted on the Fellowship's church building and harassment of its members. Complaint ¶ 20(c). Plaintiffs claim these actions were taken by Defendants pursuant to an official policy intended to "get rid of" the Fellowship from the Town because of its religious beliefs and minority members, and its ministry to racial minorities. Complaint ¶ 19. In Defendants' answer, filed August 2, 1999, Defendants denied these allegations and interposed several defenses, including qualified immunity.²

2 No motion to dismiss or to stay proceedings based on qualified immunity, or any other grounds, was filed by Defendants prior to the instant motion.

On November 15, 2001, following completion of pretrial discovery, Defendants moved for summary judgment dismissing the action (Doc. No. 12), along with a Memorandum of Law (Doc. No. 13) ("Defendants' Memorandum"), a Statement of Indisputed [ sic] Facts (Doc. No. 14) ("Defendants' Rule 56 Statement"), the Affidavit of Marylou K. Roshia, Esq. in Support of Summary Judgment, dated November 15, 2001, (Doc. No. 15) ("Roshia Affidavit") with attached Exhibits A through HH,³ and the Affidavit of Defendant Ulatowski, dated November 15, 2001, (Doc. No. 16) ("Ulatowski Affidavit") with attached Exhibits A through C. On February 19, 2002, Plaintiffs filed a Memorandum of Law in opposition to Defendants' motion for summary judgment ("Plaintiffs' Memorandum") which included, at the end of the memorandum, a Local Rule 56 Statement of Disputed Facts (Doc. No. 21) ("Plaintiffs' Rule 56 Statement"), and the Certification of Brian W. Raum, Esq. in Opposition to Defendants' Motion for Summary Judgment, dated February 16, 2002, (Doc. No. 22) ("Raum Certification") with attached Exhibits 1 through 7.⁴ On February 19, 2002, Plaintiffs filed two volumes of additional exhibits to the Raum Certification, containing Exhibits 8 through 10 and Exhibits 11 through 36, respectively. On March 15, 2002, Defendants filed a Memorandum in Further Support of Motion for Summary Judgment (Doc. No. 23) ("Defendants' Reply Memorandum") and the Affidavit of Marylou K. Roshia, Esq., dated March 15, 2002, Defendants' Exhibits A B, in Further Support of Summary Judgment (Doc. No. 24) ("Roshia Reply Affidavit"). Oral argument was deemed unnecessary. Based on the following, Defendants' motion should be GRANTED.

3 All Defendants' exhibits are individually referred to herein as "Defendants' Exhibit[s] ___," or "Ulatowski Affidavit Exhibit ___."

4 All Plaintiffs' exhibits, i.e., Exhibits 1-36, are individually referred to herein as "Plaintiffs' Exhibit[s] ___."

FACTS ⁵

5 The fact statement is taken from the pleadings and motion papers filed in this action.

Pastor Andzel established New Creation Fellowship in Buffalo, New York in 1981.⁶ Affidavit of Stephen J. Andzel dated February 13, 2002, Plaintiffs' Exhibit 1, ("Andzel Affidavit") ¶ 1; Id. ¶¶ 3-3 [ sic]. The Fellowship is presently affiliated with Living Word Ministries, an organization not otherwise identified or described in the record. Id. According to the Complaint, the Fellowship is a religious corporation incorporated under New York law and enjoys a tax exemption as a not-for-profit organization pursuant to § 501(c)(3) of the Internal Revenue Code. Complaint ¶ 7. Defendants have not admitted these averments, denying sufficient knowledge upon which to entertain a belief. Answer ¶ 7. Plaintiffs assert the Fellowship's religious faith includes preaching and teaching the New Testament gospels, baptizing, meeting the "physical and practical needs of the community," and assisting individuals in need. Andzel Affidavit ¶¶ 2, 3. Andzel received a certificate from the Buffalo School of the Bible, a program taught by Elam Bible Institute and received further training at World Harvest Ministries in Ohio. Deposition of Stephen J. Andzel, Plaintiffs' Exhibit 3 ("Andzel Deposition") at 6-8; Andzel Affidavit ¶¶ 3-4. According to Andzel, the Fellowship believed in "reaching out and minister[ing] to minorities in the inner city of Buffalo." Andzel Affidavit ¶ 2.

6 There are two paragraphs 3 at page 2 of the Andzel Affidavit.

By 1992, the Fellowship's growth in members caused the Fellowship to move from its original location, near downtown Buffalo, to larger premises in the Town acquired by the Fellowship at 3325 Genesee Street ("3325 Genesee Street"). Id. ¶ 1. The building and land purchased by the Fellowship were formerly used for commercial purposes as an automobile dealership. Deposition of Thomas M. Johnson, Jr., Defendants' Exhibit I ("Johnson Deposition") at 17-18; Deposition of Stephen L. Grant, Plaintiffs' Exhibit 10 ("Grant Deposition") at 12-14. A landscape plan for the new Fellowship church building, which contemplated converting the existing commercial structure into a "meeting facility and a Sunday School Building" was approved by the Town in April 1992. Defendants' Exhibit B. The Fellowship substantially renovated the former auto dealership building to be suitable for the conduct of the Fellowship's services and programs. Id. The renovated building includes an auditorium or "sanctuary," administrative offices, classroom, and a food service area. Grant Deposition at 14. As of May 2, 2000, the date of Grant's deposition, approximately 250-280 people attend the Fellowship's regularly scheduled Sunday services. Id. at 11. The Fellowship began holding services at its new location in July 1992 on Thursdays at 7:00 P.M. and Sundays at 10:00 A.M. and 7:00 P.M., with prayer meetings held an hour and a half before the Sunday morning service.

In August 1994, the Fellowship acquired an additional parcel of property at 3125 Genesee Street, adjoining the Fellowship's church building at 3325 Genesee Street, consisting of land on which there was a stand of trees and which was then used by Fellowship church attendees as a parking lot. Grant Affidavit ¶ 2. When acquired by the Fellowship, the property was "polluted with large amounts of garbage and refuse" resulting from "years of dumping" by others. Andzel Affidavit ¶ 16. In 1995, the Fellowship requested the Town's permission to remove brush and thin trees on the site and generally clean up the property. Defendants' Exhibit F. In response, the Town sent the Fellowship a copy of the Town's Tree Preservation Ordinance, Town of Cheektowaga Code Chapter 74, § 74-2A, enacted in 1992 ("the Tree Preservation Ordinance"), which prohibits cutting trees, without distinguishing between live or dead trees, more than four inches in diameter, measured at a point six inches from the ground, without a permit from the Town.⁷ In response to the Fellowship's request, the Cheektowaga Conservation Advisory Council's⁸ ("CCAC") Chairman, John Marriott, ("Marriott") met with the then Fellowship Administrator David Abbatoy ("Abbatoy") on March 28, 1995, and advised Abbatoy that without a specific plan from the Fellowship detailing the Fellowship's planned improvements to the site, the CCAC was not likely to look favorably on the Fellowship's tree thinning request.⁹ Defendants' Exhibit F.

7 Defendants' Exhibit E; Defendants' Rule 56 Statement (Doc. No. 14) ¶ 10; Plaintiffs' Rule 56 Statement ¶ 4.

8 Under New York law, municipal conservation advisory councils are authorized to "advise [a municipality] on the development, management, and protection of its [natural] resources." N.Y. Gen. Mun. Law § 239-x (McKinney 2003). See also Note 13, infra, at 11.

9 Although Exhibit F, a memorandum to Conway from Marriott dated February 8, 1996, refers to a February 6, 1995 phone conversation and a March 22, 1996 phone conversation, the text of the memorandum and facts stated by Grant in his affidavit, Grant Affidavit ¶¶ 26, 27, reflect that the February phone conversation, as referenced in the memorandum, occurred in 1996, and that the March phone conversation occurred in 1995. Plaintiffs do not dispute that they were aware the Town was disinclined to authorize tree thinning on the parcel. Plaintiffs' Rule 56 Statement ¶ 4.

According to a letter dated February 16, 1996, memorializing a meeting between Richard F. Brox ("Brox"), the Fellowship's landscape architect, Town Building Inspector Thomas Adamczak ("Adamczak"), and Town Senior Building Inspector Ronald Marten ("Marten"), the Fellowship sought to clear the site for use as a play area and recreational activities under the Fellowship's auspices.¹⁰ Defendants' Exhibit G. It was generally agreed by the parties that the wooded area on the site would be cleared of "brush, dead wood and material under two inches in diameter," and that the work would be performed mostly by church volunteers working on weekends with an anticipated completion date of mid-May to mid-June 1996. Id. (underlining added). In June 1996, Marten further stated in a letter to Abbatoy, approving the Fellowship's proposed improvement work, that, in performing the brush removal and cleanup of the site, the Fellowship would maintain a 50-foot natural buffer along the south and west property lines of the property from which only debris, dead fallen trees, shrubs and small trees under four inches in diameter would be removed from the remaining property, but all other vegetation would be left in place. Defendants' Exhibit H. Two local residential streets abut the site, Clover Place on the south, and Pinehurst Avenue on the west. Defendants' Exhibit AA.

10 Although the letter from Brox to Marten, dated February 16, 1996, references 3325 Genesee Street, the proposed improvement, including cleanup and tree removal, actually was directed to the 3125 Genesee Street property. See Grant Affidavit ¶¶ 26, 27.

In the Spring of 1997, Town Councilman and Chairman of the Town Board's Environmental Review Committee, Thomas M. Johnson, Jr. ("Johnson"), received complaints from neighboring property owners residing on Clover Place and Pinehurst Avenue that the Fellowship was grading, bulldozing and clearing brush on its property, and that trees might have been cut down. Johnson Deposition at 16-18.¹¹ Defendants' Rule 56 Statement ¶ 14; Plaintiffs' Rule 56 Statement ¶ 6. On July 15, 1997, a neighbor, Richard Cartwright ("Cartwright"), who resided at 100 Pinehurst Avenue, complained that trees were, in fact, being cut down on the property. Defendants' Exhibit J; id. In connection with these complaints, Ulatowski visited the site on July 17, 1997, finding evidence of illegal filling but not of illegal tree removal. Ulatowski Affidavit ¶¶ 2-3. By letter dated July 17, 1997, Ulatowski notified the Fellowship that pursuant to the Town's zoning law, site development at the property, including tree removal and grading/filling, must cease until "a properly completed Development Review Application is submitted to the [Town] Building Inspections Department for agency review and approval."¹² Defendants' Exhibit K. Subsequently, on August 11, 1997, Ulatowski met with Fellowship representatives to discuss the matter and again advised the Fellowship that under the Town's new development review policy the Fellowship was required to apply for a zoning law compliance certificate. Defendants' Exhibit M; Deposition of Daniel Ulatowski, Defendants' Exhibit A ("Ulatowski Deposition") at 25-26; Andzel Deposition at 45; Grant Affidavit ¶ 30; Grant Deposition at 23-25.

11 Plaintiffs agree that while the neighbors' complaints were made to the Town, the truth of such complaints as described is disputed. Plaintiffs' Rule 56 Statement ¶ 6.

12 Although the letter from Ulatowski refers to 3325 Genesee Street, other evidence in the record establishes that the property actually under discussion was the undeveloped parcel at 3125 Genesee Street acquired by the Fellowship in 1994 adjacent to the Fellowship's church building at 3325 Genesee Street. Grant Deposition at 20.

On September 2, 1997, Brox submitted to the Town, on behalf of the Fellowship, an application for improvements of the site including a softball field, picnic shelter and playground which the Town Planning Board ("Planning Board") unanimously approved on September 11, 1997. Roshia Affidavit ¶¶ 18-19; Defendants' Exhibits N and O. By letter to Brox, dated October 10, 1997, Marten confirmed that the Fellowship could proceed with the improvements, as approved by the Planning Board, cautioning Brox, however, that "only dead fallen trees, dead trees and debris from the [50-foot] buffer areas along [the Fellowship's] south and west property lines" could be removed, but not brush and general undergrowth which was to serve as a buffer for adjoining property owners. Roshia Affidavit ¶ 20; Defendants' Exhibit O (underlining in original). In the same letter, Marten further advised Brox that Mr. Michael Papero ("Papero"), a member of the CCAC, would work with the Fellowship "in identifying specific dead trees that will be removed" as part of the Fellowship improvement project to assure "that any dead tree removal be accomplished in a controlled manner."¹³

13 Plaintiffs allege Papero, who is not named as a defendant in this action, is an official, employee or agent of the Town. Complaint ¶ 23. Papero is an unpaid member of the Town CCAC, a group authorized by state law, made up of residents who are concerned about environmental issues pertaining to the Town and who provide advice to the Town in matters relating to tree preservation, and air and water pollution. Deposition of Ronald Marten, Plaintiffs' Exhibit 15 ("Marten Deposition"), at 23-24. New York General Municipal Law § 239-x[1](g) (McKinney 2003) ("§ 239-x") authorizes a municipality, to establish, by resolution, a local conservation advisory counsel to "carry out any other duties, tasks, or responsibilities, consistent with the objectives [of § 239-x] assigned to it by resolution" of the municipality's local legislative body. Papero is a part-time employee in the Town's Parks and Recreation Department; he is not a member of Marten's staff in the Town Building Department. Marten Deposition at 24. Section 6 of the Tree Preservation Ordinance authorizes the Town Building Inspector to supervise the cutting and removal of trees and provides that no such removal or cutting "shall commence or take place until a representative from the Town Building Department has completed his final inspection and given his approval." Defendants' Exhibit E at 4. As noted, the Tree Preservation Ordinance requires a permit for cutting and removal of all trees of the minimum caliper whether dead or alive. Facts, supra, at 7. See Defendants' Exhibit E, Section 2A ("unlawful . . . to cause, permit or allow the removal or destruction or removal of any trees growing on land within the Town.") (underlining added). However, the record does not include a copy of the Town's resolution establishing the CCAC or any other resolution from its CCAC, or any resolution authorizing duties and functions of the CCAC beyond those stated in § 239-x.

Thereafter, Papero first visited the Fellowship on Sunday, October 12, 1997, entered the foyer of the Fellowship's church building while services were being conducted in the sanctuary area, and requested to speak with someone in charge. Deposition of Michael Papero, Defendants' Exhibit P ("Papero Deposition") at 23, 34. An usher, with whom Papero spoke in the foyer, suggested Papero should meet with Grant and advised Grant, who was then in the sanctuary, of Papero's request. Grant Deposition at 47. Grant met with Papero in the church foyer and, as Marten had advised Brox in his October 10^th letter, Papero informed Grant that Papero intended to mark dead trees on the property suitable for removal.¹⁴ Id. at 28-31; Grant Deposition at 47. Papero returned two weeks later on Sunday, October 26, 1997, to mark the dead trees, entered the foyer of the Fellowship's church building where people were socializing, again spoke with Grant, exited the building to mark the dead trees on the site, returned to the foyer, purchased doughnuts from a doughnut sale being conducted in the foyer and left the building. Id. at 28-30, 34-35.

14 The record indicates Grant was made aware of Marten's October 14, 1997 communication when he received a copy of the letter to Brox after Papero's first visit to the Fellowship's property to mark the dead trees for removal on October 12, 1997. Grant Deposition at 53.

While Marten requested that Papero should inspect the property for the purpose of identifying dead trees that the Fellowship would be permitted to remove, Defendants' Exhibit O, Marten did not instruct Papero to make such inspection on Sundays, nor did he instruct Papero to conduct such inspections during the Fellowship's Sunday services. Marten Deposition at 30-31. Marten stated he would not have advised Papero that such visits, and the necessary inspections, take place on a Sunday, and Marten was unaware that Papero intended to or had done so. Id. at 31. In response to Grant's letters, following Papero's inspection and marking, requesting Marten's guidance as to whether the Fellowship was then permitted to continue work on its improvements to the site, Plaintiffs' Exhibits 11-12, Marten informed Grant, by letter dated December 31, 1997, that Papero had identified all of the trees suitable for removal at the site, and that the Fellowship could begin removing such trees upon notifying the Town's Building Department to allow for its supervision of the Fellowship's tree removal work. Defendants' Exhibit S. However, as of February 1998, the Fellowship had not notified the Building Department of its intention to commence removing the identified trees. Defendants' Exhibit V.¹⁵

15 Letter from Kevin G. Shenk, Deputy Town Attorney to Vincent P. McCarthy, Esq., Plaintiffs' attorney, dated May 7, 1998 at 1, ¶ 4.

According to a complaint filed on February 14, 1998 with the Town Police Department, a Clover Place resident claimed that a Fellowship worker was cutting trees at the site and, upon investigating, the responding police officers discovered the Fellowship volunteers, who were present, could not produce written authorization from the Town for their tree removal activity; accordingly, the police requested the volunteers to cease cutting trees on the property until the Town's Building Department could be contacted. Roshia Affidavit ¶ 26; Defendants' Exhibit T. On February 23, 1998, the Town Building Department notified the Town Police Department that although tree removal on the property had been approved, as of that time the Fellowship had not provided the required prior notice to the Building Department of its intention to start removing trees on the site to allow the Town's oversight of the tree removal work. Roshia Affidavit ¶ 27; Defendants' Exhibit S. By letter dated May 7, 1998, Cheektowaga Deputy Town Attorney Kevin G. Schenk advised the Fellowship's attorney, Vincent P. McCarthy, that although the Fellowship's site plan for its recreation area on the site had been approved at the September 1997 meeting of the Planning Board, and notwithstanding the prior approval of Fellowship's tree removal request by Marten, the Town's Supervising Building Inspector, the Fellowship had not provided the Town Building Department with advance notice as to when such work was scheduled to commence so as to enable the Building Department to oversee the tree removal work as Marten's approval required. Roshia Affidavit ¶ 28; Defendants' Exhibit V ¶ 4. Schenk further reiterated that other than the required notification, all necessary approvals for the Fellowship to proceed with its recreation area had been obtained from the Town. Id. ¶ 2. McCarthy was also informed by Schenk that the Town saw no basis for a belief, held by the Fellowship, that it had any "dispute with the Town." Id.

On August 19, 1998, the Town's Building Department received from an unidentified Clover Street resident another complaint of work being performed on the property, including the dumping of dirt along the rear property line which could create ponding and flooding problems for neighboring residents. Roshia Affidavit ¶ 28; Defendants' Exhibit U. According to the contemporaneous report prepared by Ulatowski, the chairman of the Town Planning Board visited the site and directed the contractor to remove any unapproved fill that had been dumped on the Fellowship's property line. Defendants' Exhibit U. A further complaint filed with the Town Police Department on September 2, 1998, by Ms. Eleanor Logan, a Clover Place resident, asserted that Fellowship volunteers were cutting down trees at night in violation of the Tree Preservation Ordinance and the site plan approved by the Planning Board near the rear of the property, the mounds of dirt previously deposited there had yet to be removed, and the neighboring residents were concerned about possible drainage problems as a result of the tree removals. Roshia Affidavit ¶ 28; Defendants' Exhibit X.¹⁶

16 Defendants' Exhibit X includes two Town Building Neighborhood Preservation Inspection Department Complaint Referrals Nos. 0676, dated September 2, 1998, and 0678, dated September 3, 1998.

An additional complaint by an unidentified Pinehurst Avenue resident called in by telephone to the Town police on September 3, 1998, asserted that the cutting and removal of live trees more than six inches in caliper had taken place overnight at the site. Defendants' Exhibit X (Referral # 0678). Councilman Johnson received a phone call complaint during the evening hours of September 2, 1998 from Mrs. Cartwright that she and another Pinehurst Avenue resident, Joanne Schuh, observed young live trees over 4 inches, some over 10 inches in diameter, being cut on the property. Plaintiffs' Exhibit 16. Johnson referred the complaints to Marten on September 3, 1998 for a "followup inspection" to assure compliance with the Town's ordinances. Id. Following Ulatowski's inspection of the site, in response to these complaints, during which evidence of improper tree removals was observed, Ulatowski Affidavit ¶ 5, on September 3, 1998, Ulatowski posted a "Stop Work" order on the front door of the Fellowship's church building in response to repeated violations of the Tree Preservation Ordinance, the Fellowship's approved site improvement plan, and the Town's Building Department's conditions for the improvements, including tree removals, as determined by Ulatowski. Id.; Plaintiffs' Exhibit 17 (Ulatowski's Stop Work Order No. 0678 dated September 3, 1998).

By letter dated September 3, 1998, Ulatowski advised Grant that Ulatowski had personally observed evidence that several apparently live trees in excess of four inches in diameter had been removed from the site in violation of the Tree Preservation Ordinance which, according to Ulatowski, Grant stated had been done "inadvertently." Roshia Affidavit ¶ 28; Defendants' Exhibit Y at 1; Ulatowski Affidavit ¶¶ 5, 7. Ulatowski reminded Grant that the Fellowship was limited under applicable Town ordinances and the Town's approval of the Fellowship's site improvement plan to the specific work at the site that had been approved by the Town, id., particularly, the removal of only dead trees as designated by Papero, and proposed that the Fellowship could mitigate any penalty that may be assessed for the removal of live trees, in violation of the Tree Preservation Ordinance, by agreeing to replace the illegally removed trees. Defendants' Exhibit Y at 2. As a result of Ulatowski's observations, a stop work order was posted on the property. Ulatowski Affidavit ¶ 5.

Ulatowski met with Grant on September 17, 1998 to discuss the matter and to verify the placement of a construction fence prior to the removal of brush at the site. Roshia Affidavit ¶ 31; Defendants' Exhibit Z. On September 18, 1998, Ulatowski sent Grant a two-page letter memorializing the September 17, 1998 meeting in which Ulatowski stated, "[p]lease consider this correspondence an authorization to commence work." Defendants' Exhibit Z at 1. Ulatowski further reminded Grant that the site plan approved by the Town did not authorize any gross grading or filling, and that the Town was concerned that broken concrete and clay fill had been deposited near a depressed area bordering the property's southerly buffer which could adversely affect drainage in the area. Id. In the letter, Ulatowski also acknowledged the Fellowship's complaint that others had dumped the debris on the property without the Fellowship's permission, advised the Fellowship to file a formal complaint with the Police Department with regard to the improper dumping so the police could investigate, and enclosed a portion of the Town's code relative to unauthorized dumping. Id. at 2. Ulatowski also offered to Grant the Town's assistance in the detection and prosecution of those responsible for the alleged illegal dumping on the site. Id. Finally, Ulatowski requested Grant advise him as to a proposed timetable and plan for completing the unfinished landscaping and replanting the illegally removed trees. Id.

Thereafter, on September 23, 1998, Councilman Johnson received another anonymous complaint regarding possible violations of the approved site improvement plan and Tree Preservation Ordinance on the property. Roshia Affidavit ¶ 32; Defendants' Exhibit AA (Ulatowski Memorandum to Councilman Johnson dated September 24, 1998). At Johnson's request, Ulatowski investigated but found no evidence of unauthorized activity and so advised Johnson. Id. Subsequently, on September 28, 1998, Mr. Cartwright complained that trees greater than four inches in diameter were being cut down on the property. Roshia Affidavit ¶ 33; Defendants' Exhibit CC (Ulatowski Memorandum to Councilman Johnson dated October 1, 1998). Ulatowski met with Cartwright on the Fellowship's property, and observed and photographed the remains of eight apparently live trees four inches and larger in diameter, which appeared to have been recently cut. Ulatowski Affidavit ¶¶ 6-9 and Ulatowski Affidavit Exhibit B.¹⁷

17 Although both the affidavit and the photograph of the alleged illegal tree cutting refer to 3325 Genesee Street, Ulatowski Affidavit Exhibit B, other evidence in the record strongly implies the tree cutting violations observed by Ulatowski on September 28, 1998 occurred on the Fellowship's unimproved land at 3125 Genesee Street. See Defendants' Rule 56 Statement, Doc. No. 14; Plaintiffs' Rule 56 Statement, Doc. No. 21, ¶ 1 ("the adjacent parcel . . . [purchased by the Fellowship in August 1994] is largely at issue in this case.")

Based on Ulatowski's observed violations on September 28, 1998 and as personally witnessed by Cartwright on September 26, 1998, Plaintiffs' Exhibit 21, Ulatowski, on September 28, 1998, issued another stop work order to the Fellowship, Plaintiffs' Exhibit 27, and, on October 1, 1998, filed a criminal complaint charging Grant, as administrator of the Fellowship, with removing trees from the property without a permit in violation of the Tree Preservation Ordinance. Defendants' Exhibit BB. A criminal summons requiring Grant's appearance ("summons") in Cheektowaga Town Court on November 5, 1998, was issued by the court on October 22, 1998. Plaintiffs' Exhibit 25. Town Police Officer John Mueller ("Mueller") served Grant with the summons on the same day at the end of a Friday evening special event at the Fellowship's church building which was open to the public. Raum Declaration ¶ 60; Grant Deposition at 75, 76, 78. According to Grant, Mueller arrived as attendees at the program, which featured a nationally recognized guest speaker, were leaving the Fellowship church building, encountered Grant in the foyer, Grant Deposition at 76 and informed Grant that a failure to appear as required by the summons would result in Grant being taken into custody. Id. at 78. Grant's initial November 5^th court appearance was later rescheduled for December 3, 1998. Defendants' Exhibit DD.

Following a series of adjournments, on March 14, 2000, Grant was given an adjournment in contemplation of dismissal ("ACD"), pursuant to New York Criminal Procedure Law § 170.55 (McKinney 1993), in resolution of the Town's charges and in exchange for Grant's agreement, on behalf of the Fellowship, to replant the illegally removed trees at the site within three months. Particularly, the ACD includes, inter alia, the condition that Grant "[p]rovide any and all landscaping as specified by the [Town] Building Department." Grant Deposition at 85; Defendants' Exhibit FF. Defendants maintain that as of November 15, 2001, the Fellowship had yet to replant the trees as required by the ACD. Defendants' Memorandum at 9. However, Plaintiffs assert their full compliance with the ACD conditions has been hindered because the Town has failed to inform Plaintiffs of where the new trees should be planted at the site. Andzel Affidavit ¶ 46.

In 1992, the Fellowship applied for and was granted a real property tax exemption for the parcel of land at 3325 Genesee Street on which the Fellowship's church building is located. In 1994, after the Fellowship acquired the vacant parcel located at 3125 Genesee Street, Town Assessor Conway advised the Fellowship's then Chief Administrator, David Abbatoy, that if the Fellowship combined its two adjacent parcels, i.e., the vacant parcel at 3125 Genesee Street and the parcel at 3325 Genesee Street, the former auto dealership land and building, on which the Fellowship's church building was located, into one parcel for tax assessment purposes, the entire combined parcel would be exempted from local real property taxes. Minutes of July 6, 1999 Cheektowaga Tax Assessment Grievance Hearing, Plaintiffs' Exhibit 7 at 17.¹⁸ Deposition of William Conway, Plaintiffs' Exhibit 8 ("Conway Deposition") at 42. The Fellowship did not, however, combine the two parcels, as Conway had suggested, but, rather, applied in 1995 for a local property tax exemption for 3125 Genesee Street as a separate parcel for tax assessment purposes. Id. Plaintiffs maintain that in July 1995, Mrs. Andzel, Andzel's wife, visited Conway to inquire about obtaining a tax exemption for 3125 Genesee Street, and Conway responded by saying, "What do you people want from us?" Andzel Affidavit ¶ 6. Plaintiffs further assert that when Andzel himself visited Conway to learn what Conway meant by Conway's alleged statement to Mrs. Andzel about "you people," Conway stated to Andzel, "[W]e don't know who you are," "we don't want you here," and "you've been denied, and I'm going to do everything I can do to make sure that you never have an exemption on the [3125 Genesee Street] property." Andzel Affidavit ¶ 7; Plaintiffs' Memorandum at 6. Conway and the Board of Assessment Review denied the 1995 tax exemption request, allegedly, according to Plaintiffs, because of Defendants' antipathy toward the Fellowship's religion and its ministry to minorities. Andzel Deposition at 31, 35; Grant Affidavit ¶¶ 3-4; Andzel Affidavit ¶ 14. The denial was judicially challenged by the Fellowship, was eventually upheld by decision of New York Supreme Court, and was not further appealed by Plaintiffs. Andzel Affidavit ¶ 13; Grant Affidavit ¶ 3.

18 The minutes of the July 6, 1999 Cheektowaga Tax Assessment Grievance Hearing are included in Plaintiffs' second volume of exhibits labeled "Exhibits 8-10 to Certification of Brian W. Raum." However, Tab No. 7 appears at the end of the first volume of exhibits whereas the minutes themselves are included in Plaintiffs' second volume of exhibits, before Exhibit 8. The court therefore concludes Plaintiffs intend that the minutes constitute Exhibit 7.

Plaintiffs failed to pay the real property taxes on the 3125 Genesee Street property for 1996, 1997, 1998 and 1999. Plaintiffs' Exhibit at 5. The Fellowship again applied for a property tax exemption for the property in 1998 and 1999, because, as averred by Andzel, "[c]ircumstances had considerably changed" since denial of the 1995 application, "and the property was being used more and more for activities related to the Fellowship's religious mission." Andzel Affidavit ¶ 8. The Fellowship applied to have their two properties combined for tax purposes in March 1999, Plaintiffs' Exhibits 5, 6; Grant Affidavit ¶ 4. However, as of 1998, the accrued and unpaid taxes on 3125 Genesee Street prevented the Fellowship from legally combining, for tax assessment purposes, the property with 3325 Genesee Street. Conway Deposition at 52-53; Plaintiffs' Exhibit 7 at 5. The Fellowship was granted a stay on payment of the disputed 1998 and 1999 real property taxes pending the outcome of the judicial challenge to the Town's denial of the 1998 and 1999 tax exemption requests. Conway Deposition at 57. The Fellowship's 1998 and 1999 applications for property tax exemption for 3125 Genesee were also denied by Conway, and the Board sustained both denials. Grant Affidavit ¶¶ 5, 6. Both denials were later annulled by decision of New York Supreme Court, which was affirmed in December 2001 by the Appellate Division of New York Supreme Court.¹⁹ Plaintiffs' Exhibit 9; Grant Affidavit ¶¶ 6, 8. Conway and the Board had also denied Plaintiffs' requests for tax exemptions in 2000 and 2001. Id. ¶ 7.

19 No further information regarding the 2000, 2001 requests is in the record.

DISCUSSION

1. Standing

Although not directly raised as an issue by Defendants on the instant motion, a district court must be assured of its subject matter jurisdiction and therefore is required to consider whether the jurisdictional prerequisite of the Plaintiffs' standing to sue exists, regardless of the parties' failure to raise the question. Browning-Ferris v. Muszynski, 899 F.2d 151, 159 (2d Cir. 1990) ("a [district] court is obliged to consider challenges to subject matter jurisdiction sua sponte at any stage of the proceedings."). It is fundamental law that a party's "standing is an essential and unchanging part of the case-or-controversy requirement of Article III [of the Constitution]." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Additionally, "[t]he party seeking to invoke the jurisdiction of the court bears the burden of establishing that he has met the requirements of standing." Burns v. Warwick Central School Dist., 166 F.Supp. 2d 881, 887 (S.D.N.Y. 2001) (citing Lujan, supra). Accordingly, at the threshold, the court addresses whether Plaintiffs have met their burden of establish standing to sue, thereby conferring subject matter jurisdiction upon this court to consider their claims and to determine Defendants' motion seeking summary judgment.

Here, the Fellowship is alleged to be a religious corporation. Complaint ¶ 7. Defendants do not concede that the Fellowship is a religious corporation under the New York Religious Corporation Law; rather, Defendants stated they lack sufficient information to admit or deny this allegation. Answer ¶ 7. Defendants' pleading is considered a denial of Plaintiffs' allegation. Fed.R.Civ.P. 8(b) ("If a party is without knowledge or information sufficient to form a belief as to the truth of an averment, the party shall so state and this has the effect of a denial.") Further, in opposing Defendants' request for summary judgment, Plaintiffs failed to provide a copy of the Fellowship's articles of incorporation and thus have not, for the purposes of Defendants' motion, met their burden of establishing the Fellowship is in fact incorporated under the New York Religious Corporation Law. Although not specifically challenged by Defendants, the court may consider whether the Plaintiffs have sufficiently established that the Fellowship is a religion entitled to the First Amendment's protection as such issue is critical to whether Plaintiffs have standing on their Cause of Action, the free exercise of religion claim. See Bridgeway Corporation v. Citibank, 201 F.3d 134, 140 (2d Cir. 2000) (where issue is "clearly put into play" on motion for summary judgment, although not asserted as a basis for summary judgment, court may reach issue as likelihood of surprise to party opposing summary judgment is "virtually nil").

Religious organizations have been permitted to sue in federal court for abridgements of their rights under the Free Exercise Clause of the First Amendment. See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993); The Rectors, Wardens and Members of the Vestry of St. Bartholomew's Church v. New York City, 914 F.2d 348, 352-55 (2d Cir. 1990) (herein " St. Bartholomew's Church"), cert. denied, 499 U.S. 905 (1991); St. German of Alaska Eastern Orthodox Church v. United States, 840 F.2d 1087, 1091-92 (2d Cir. 1988). Accord, The Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518, 520-22 (9^th Cir. 1989); Church of Scientology v. Cazares, 638 F.2d 1272, 1279 (5^th Cir. 1981). That organizations, including religious organizations and churches, are entitled to assert claims for abridgement of their rights to free speech and association under the First Amendment is also now well established. First National Bank of Boston v. Bellotti, 435 U.S. 765, 784 (1978). See also St. German of Alaska Eastern Orthodox Catholic Church, supra, 840 F.2d at 1091-92.

Additionally, Religious organizations and churches may plead violations of the Equal Protection Clause based on selective investigation and enforcement directed at them by government agents. Branch Ministries, Inc. v. Richardson, 970 F.Supp 11, 15-19 (D.D.C. 1997) (permitting religious organization to invoke claims of selective enforcement theory as ground for challenging I.R.S. revocation of organization's tax exempt status) (citing Santa Clara County v. Southern Pacific R.R. Co., 118 U.S. 394, 396 (1886) and cases). See St. German of Alaska Eastern Orthodox Church, supra, 840 F.2d at 1094 (court allowed church to assert claims of discriminatory investigation based on statements of members and contributors). See also Irish Lesbian and Gay Organization v. Giuliani, 143 F.3d 638, 648-49 (2d Cir. 1998) (plaintiff organization had standing to sue for violations of plaintiff's free speech and equal protection rights resulting from New York City's denial of parade permit). As the Supreme Court in Bellotti stated, "[c]orporate identity has been determinative in several decisions denying corporations certain constitutional rights, such as the privilege against self-incrimination . . ., or equality with individuals in the enjoyment of the right to privacy . . ., but this is not because the States are free to define the rights of their creatures without constitutional limit. Otherwise, corporations would be denied the protection of all constitutional guarantees, including due process and the equal protection of the law." Bellotti, supra, 435 U.S. at 779 n. 14 (underlining added) (internal citations omitted). See also Hudson Valley Freedom Theatre, Inc. v. Heimbach, 671 F.2d 702, 705 n. 4 (2d Cir. 1982) (nonprofit membership corporation had standing to bring § 1983 action claiming violation equal protection rights based on defendant's alleged racially discriminatory decision making process in rejecting plaintiff's grant application). Accordingly, as the Fellowship is suing as a religious corporation, it has standing to assert violations of its own First Amendment free religious exercise, speech and association, and Fourteenth Amendment Equal Protection Clause rights. Additionally, because Andzel and Grant sue only in their official capacities, such claims are in effect claims of the entity they represent, here, the Fellowship, and not as individual plaintiffs. See Karcher v. May, 484 U.S. 72, 78 (1987); see also Frank v. Relin, 1 F.3d 1317, 1326 (2d Cir. 1993). Thus, for the purpose of this case, all Plaintiffs' asserted claims devolve into federal and state constitutional claims on behalf of the Fellowship as a religious corporation.

However, in addition to a showing that it is within the scope of protection granted by a specific constitutional right, to maintain, as required by Article III of the Constitution, the standing necessary to enforce such rights, an organizational plaintiff, like an individual plaintiff, must also demonstrate that "(1) it has suffered an 'injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Friends of the Earth, Inc. v. Laidlaw Envtl. Services, Inc., 528 U.S. 167, 180-81 (quoting Lujan, supra, 504 U.S. at 560-61). As mandated by Article III, the actual or threatened injury complained of must be "distinct and palpable." Leibovitz v. New York Transit Auth. 252 F.3d 179, 183 (2d Cir. 2001) (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)). Violations of constitutional or federal statutory rights that directly impair an organization's capacity to function as an organization, such as a diversion of organizational resources, establish an injury in fact sufficient to confer constitutional standing. Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982); Irish Lesbian and Gay Organization, supra, 143 F.3d at 649.

Besides meeting the requirement of constitutional standing, a federal organizational plaintiff must also show it has prudential standing, i.e., that it is entitled to assert a claim under the relevant constitutional provision or statute, the violation of which forms the basis for the lawsuit. Leibovitz, supra, 252 F.3d at 184-85. "Only 'persons to whom Congress has granted a right of action, either expressly or by clear implication, may have standing to seek relief on the basis of the legal rights and interests of others.'" Id. (quoting Warth, supra, 422 U.S. at 501). In the Second Circuit, organizations lack standing to bring § 1983 claims, except freedom of association violations, on behalf of their members. League of Women Voters v. Nassau County, 737 F.2d 155, 160 (2d Cir. 1984). "This Circuit has restricted organizational standing under § 1983 by interpreting the rights it secures to be personal to those purportedly injured." Id. (citing Aguayo v. Richardson, 473 F.2d 1090, 1099 (2d Cir. 1973), cert. denied sub nom., Aguayo v. Weinberger, 414 U.S. 1146 (1974)). See also Albany Welfare Organization v. Wyman, 493 F.2d 1319, 1321 (2d Cir. 1974); American Charities for Reasonable Fundraising Regulation, Inc. v. Shiffrin, 46 F.Supp.2d 143, 152 (D.Conn. 1999).

Here, the Fellowship has not asserted any claims in a representational capacity for violations of its individual members' rights to freedom of association. As noted, Andzel and Grant sue only in their official capacities.²⁰ Complaint ¶¶ 8, 9. Moreover, the Complaint specifically limits the alleged freedom of association abridgements to Plaintiffs' rights. Complaint ¶ 36 ("Defendants . . . interfered with Plaintiffs' right to free association."); id. ¶ 37 (Defendant's [ sic] acts of disrupting Fellowship services . . . violates Plaintiffs' free . . . association rights. . . ."). Nor do Plaintiffs' arguments, opposing Defendants' motion, suggest Plaintiffs intended to sue in a representational capacity for the Fellowship's members' free association rights. Plaintiffs' Memorandum in Opposition (Doc. No. 21) ( passim). Therefore, because the Complaint does not set forth a claim for violation of any individual Fellowship member's right to freedom of association, no claims for abridgement of the First Amendment freedom of association protection on behalf of such members are before the court, and no Fellowship member has sued as an individual plaintiff.²¹ Additionally, absent an allegation in the Complaint that it intends to bring suit in a representational capacity, the Fellowship lacks standing to assert such claims in its representational capacity. Padberg v. McGrath-McKechnie, 203 F.Supp.2d 261, 275 (E.D.N.Y. 2002), aff'd, 60 Fed. Appx. 861 (2d Cir. 2003) (Table), cert. denied, 72 U.S.L.W. 3154 (Oct. 20, 2003). Contra Cazares, supra, 638 F.2d at 1277 ("explicit" allegation of representational standing not required to sustain plaintiff church's First Amendment claims on behalf of members).²² Accordingly, Plaintiffs' freedom of association claims are limited to alleged violations of Plaintiffs' freedom of association rights only. The court now turns to Plaintiffs' lack of standing based on the absence of any showing they suffered a palpable constitutional injury.

20 The Town's prosecution of Grant was commenced by service of a summons based upon a criminal complaint charging Grant as the Fellowship's administrator with violating the Tree Preservation Ordinance. Defendants' Exhibit BB. The court notes that, based on the facts developed in discovery in this case, as submitted to the court on the instant motion, no evidence was adduced showing Grant personally violated the Tree Preservation Ordinance. Indeed, both Andzel and Grant testified that Fellowship volunteers were the persons responsible for the alleged illegal tree cutting leading to the Town's criminal complaint. Andzel Deposition at 53 ("The people in the church volunteered to do it [tree removal].);" Plaintiffs also included in their opposition papers the unsworn statement, dated January 9, 1999, asserting that a local resident had allegedly entered, at times unstated, upon the property and cut down trees. Plaintiffs' Exhibit 24. Grant Deposition at 71 ("Phil Rademacher and Al Bohrer . . . assured me that they will not and they did not . . . [c]ut any tree under — over four inches."); Plaintiffs' Exhibit 21, Affidavit of Richard A. Cartwright, dated September 29, 1998 ("I saw Phil (church member) cutting the trees down.") (parenthetical material in original). Grant, however, does not allege a malicious prosecution claim against Ulatowski, Marten, or the Town, as a Fourth Amendment violation.

21 Plaintiffs do not plead a class action pursuant to Fed.R.Civ.P. 23.

22 Assuming for the purpose of analysis, Plaintiffs were found to have standing to assert on a representational basis the freedom of association claims on behalf of the Fellowship members, there would be no representational standing to sue for monetary damages based on the Fellowship members' freedom of association claims as standing to assert such damages on a representational basis presumes that each person suffered an actual loss. See Warth v. Seldin, supra, 422 U.S. at 515-16 (monetary damages for violation of First Amendment freedom of association claim may not be asserted as basis of representational standing as such relief is predicated on "infractions" that "adversely affect [organization's] members' associational ties [,]" and therefore requires the "individual participation of each injured party.") However, as the extent of any damages to be awarded is dependent on the individual characteristics of each of the constitutional injuries to Fellowship members who may have asserted a First Amendment free association violation, ( e.g., whether all the Fellowship's congregants attend weekly services on a regular basis and whether any members were unable to participate in the Fellowship's religious services because of Defendants' alleged violations) representational standing is not available as to monetary dam ages in this case. As noted, no Fellowship member has sued for abridgement of constitutional rights in his or her individual capacity and, therefore, the Fellowship could not assert a claim for money damages on behalf of its members. See Irish Lesbian and Gay Organization, supra, 143 F.2d at 648 (district court's finding that plaintiff lacked representational standing to enforce individual members' claims for money damages based on abridgements of individual members' associational rights was "obviously correct.")

While the Fellowship may assert, on its own behalf, the First Amendment claims as alleged in the Complaint, the court finds the Fellowship has presented no admissible evidence in opposition to Defendants' summary judgment motion that it has suffered an injury in fact sufficient to sustain constitutional standing prerequisite to the court's subject matter jurisdiction. At the summary judgment stage, as in this case, a federal civil rights plaintiff has the burden to establish standing requiring the plaintiff make, "by affidavit or other evidence," Lujan, supra, 504 U.S. at 561, "a factual showing of perceptible harm." Id. at 566. See Colombo v. O'Connell, 310 F.3d 115, 117 (2d Cir. 2002) (plaintiff's § 1983 claim of interference with free speech based on defendant's alleged threat to sue dismissed for lack of showing that defendant's action in fact curtailed plaintiff's free speech). Moreover, "[t]o state a claim under Section 1983, a plaintiff must allege facts indicating that some official action has caused the plaintiff to be deprived of his or her constitutional rights — in other words, there is an injury requirement to state the claim." Id. As the Supreme Court in Lujan, supra, stated, "the injury has to be 'fairly trace[able] to the challenged action of the defendant, and . . . not th[e] result [of] the independent action of some third party not before the court.'" Lujan, supra, 504 U.S. at 560 (ellipses and bracketed material in original) (quoting Simon v. Eastern Ky. Welfare Rights Organization, 42 U.S. 26 41-42 (1976)).

Here, Plaintiffs claim Defendants violated their First Amendment rights to the free exercise of the Fellowship's religious beliefs, free speech, and freedom of association based on several specific actions allegedly taken by the individual Defendants, their employees or agents. In support of its First Amendment claims, Plaintiffs have alleged that, motivated by a dislike for the Fellowship's religious beliefs and practices, including its ministry to members of racial minorities, Complaint ¶ 18, Defendants made the Fellowship's efforts to improve its property at 3125 Genesee Street more difficult than was necessary or required by applicable Town ordinances, Complaint ¶¶ 20a-20 b, denied Plaintiffs' requests for local real property tax exemptions for the property,²³ withdrew prior official approvals for improvements by the Fellowship at the site, Complaint ¶¶ 20a-20b, enforced the Tree Preservation Ordinance against the Fellowship while it sought to improve the property for uses ancillary to the Fellowship's religious mission, disrupted Fellowship religious exercises including Sunday worship services by its members and a Fellowship sponsored evening program, open to the public, involving a nationally recognized guest speaker, Complaint ¶¶ 23-26, 28-29, prosecuted Grant for alleged Tree Preservation Ordinance violations involving improper cutting and removal of live trees from the property. Complaint ¶ 30, and created a hostile public atmosphere against the Fellowship for the purposes of driving the organization out of the Town. Complaint ¶¶ 19, 20c.

23 Although the subject of extensive discovery, including a deposition of Conway, no specific facts relating to the Town's repeated denials of the Fellowship's requests for real property tax exemptions are alleged in the Complaint as factual support for any of Plaintiffs' seven causes of action. Plaintiffs' Memorandum at 6, 17, 20. Rather, the sole basis for Conway's liability alleged in the Complaint is that he "personally participated in the process that led to the Plaintiff's [ sic] injuries herein." Complaint ¶ 12. No facts regarding the relevant circumstances leading to the denials of Plaintiffs' real property exemption requests are pleaded in the Complaint; however, although Plaintiffs' opposition to Defendants' motion specifically asserts that such denials were motivated by a discriminatory attitude toward the Fellowship based on the racial makeup of its membership and its religious "faith." Raum Certification ¶ 20, such assertion is not pleaded, as required, in the Complaint. Notwithstanding Plaintiffs' failure to plead any facts relating to the asserted discriminatory motives for Defendant Conway's, the Board's and the Town's denial of Plaintiffs' requested tax exemptions, in the interest of judicial completeness, the court will consider this basis for Plaintiffs' claim of § 1983 liability as it relates to the question of standing, as well in connection with its consideration of the merits of Plaintiffs' claims.

Plaintiffs also alleged that Defendants encouraged unknown individuals, presumably members of the surrounding residential community not parties to this action, to harass Fellowship members attending Sunday services at the Fellowship by aiming a laser targeting device at Fellowship members, to commit acts of vandalism including racially offensive graffiti directed to Fellowship property, and the shouting of racial epithets from vehicles passing by the Fellowship's church building. Complaint ¶ 20c; Raum Certification ¶ 76. However, in response to the instant motion Plaintiffs proffer, as is their burden, no evidence that, assuming Defendants' actions constitute the asserted constitutional violations, Plaintiffs suffered any palpable harm to their alleged First Amendment rights constituting an injury in fact sufficient to sustain subject matter jurisdiction in this court over any of Plaintiffs' First Amendment claims.

In particular, although Plaintiffs contend that Defendants improperly delayed official approvals of work designed to improve the Fellowship's 3125 Genesee Street property, Plaintiffs point to no evidence in the record showing how their rights of free exercise of religion, free speech, or free association were thereby impaired. The Free Exercise Clause protects the individual's right to be free of official coercion in matters of religious training, teaching and observance, and one's choice of religious beliefs. Board of Education v. Allen, 392 U.S. 236, 249 (1968); Abington School Dist. v. Schempp, 374 U.S. 203, 222 (1963). Where a claim is for violation of the Free Exercise Clause, a plaintiff must demonstrate that the official conduct at issue operated coercively against plaintiff "in the practice of his religion." Harris v. McRae, 448 U.S. 297, 321 (1980) (quoting Schempp, supra). The First Amendment right to free speech encompasses a person's ability to express and communicate views, ideas, opinions and information without prior restraint or punishment, X-Men Security, Inc. v. Pataki, 196 F.3d 56, 68-69 (2d Cir. 1999), except when necessary to avoid "clear and present danger" or the threatened overthrow of the government by force or violence. United States v. Dennis, 183 F.2d 201, 213 (2d Cir. 1950). Freedom of association protects a person's right to enter into "intimate human relationships" as well as associations for the purpose of exercising other First Amendment liberties including "speech, assembly, petition for redress of grievances and the exercise of religion." Roberts v. United States Jaycees, 468 U.S. 609, 617-18 (1984).

In the instant case, Plaintiffs submit no evidence in opposition to Defendants' request for summary judgment showing that as a result of any of the wrongs Plaintiffs allege in the Complaint, the Fellowship, as an organization, Andzel or Grant, as its pastor and chief administrator, respectively, were prevented from holding, practicing or communicating their religious beliefs concerning personal or religious subjects, or extending to matters of public concern, communicating, privately or publicly, with each other or with other Fellowship members, or from complaining to the Town, petitioning the courts, or addressing any other persons, including the public at large, in regard to the Fellowship's religious beliefs or missions, or about the perceived problems the Fellowship was encountering with respect to its efforts to improve its property at 3125 Genesee Street, or from gathering together to proffer their religious beliefs or carrying out their religiously motivated "mission" to the inner city poor and needy. Specifically, Plaintiffs' requests to the Town for permission to make improvements to the parcel were in fact granted in 1996 by Marten and again after subsequent a approval by the Town Planning Board in September 1997, subject to notification when Plaintiffs intended to commence tree removal in order to facilitate oversight of such removals by the Town. Defendants' Exhibits H, O and V; Plaintiffs' Exhibit 13. Nor have Plaintiffs proffered evidence showing that the Fellowship was prevented from using the Fellowship's facilities at 3325 Genesee Street or its property at 3125 Genesee acquired by it in 1994, either as a church or for any religious or nonreligious purposes, as a result of the alleged difficulties Plaintiffs experienced in obtaining Defendants' approval of Plaintiffs' plans for cleanup and improvements to the property, including the removal of dead trees on the land, or the denial of Plaintiffs' requested tax exemptions for the property.

For example, Grant stated during a public hearing on the Fellowship's 1998 request for a real property tax exemption on the property before the Board on July 7, 1998, one year prior to Plaintiffs' filing of the Complaint in this action, that the Fellowship had used the vacant land for a "children's play area, parking area," and that "we [the Fellowship] are using it." Plaintiffs' Exhibit 4 at 16-17 (underlining added). Plaintiffs' attorney, Brian Raum, informed the Board at a July 6, 1999 hearing, reviewing Plaintiffs' 1999 tax exemption request for the property, well after Plaintiffs' alleged encounters with Conway in 1995, 1998, and 1999 in connection with Plaintiffs' requests for tax exemptions, and with Marten, Ulatowski and Papero in 1997 and 1998, as described in the Complaint, and the day before filing the Complaint commencing this action, that the Fellowship had used the 3125 Genesee Street property for "outdoor revival meetings, church picnics and other things that are in furtherance of the purposes of the Fellowship" and that the Fellowship had "used the property last year . . . and even more this year" to "accomplish the goals of the church."²⁴ Plaintiffs' Exhibit 4 (underlining added). Grant also testified to the Fellowship's continued and expanding use of the property since 1994, when the Fellowship purchased the property, to May 2, 2000, the date of his deposition, for activities related to the Fellowship's religious programs. Grant Deposition at 94; Grant Affidavit ¶ 4 (after the 1995 exemption denial "the property was being used more and more for activities directly related to the church's religious mission."). Andzel confirmed these representations in his affidavit, dated February 13, 2002, and in his deposition testimony, submitted in opposition to Defendants' motion. Andzel Deposition at 38; Andzel Affidavit ¶ 4.²⁵

24 As noted, the Fellowship's first tax exemption application for the 3125 Genesee Street property denied by the Town was filed in 1998, which denial was affirmed by the New York Supreme Court. Raum Declaration ¶ 9; Conway Deposition at 29. Significantly, the record does not suggest Plaintiffs had any difficulty in obtaining, or retaining, a religious use tax exemption for the Fellowship's church building at 3325 Genesee Street, where the Fellowship conducts its primary religious program, shortly after purchasing it in 1992. Statement of William R. Conway, Plaintiffs' Exhibit 4 at 3. ("[T]hat property is presently wholly exempt. They [the Fellowship] do not pay 'any taxes on that property.'").

25 "To date, the Fellowship has used the property for outdoor prayer and revival services, Vacation Bible School, Church Picnics, a children's recreational area, and Church parking." (Underlining added). Andzel's affidavit is dated February 13, 2003. The Fellowship's applications for the disputed tax exemptions were denied by Conway and the Board in 1998 and by the Board in 1999. Conway Deposition at 26-27, 47.

Moreover, it is undisputed that the Fellowship eventually received the requested tax exemptions for 1998 and 1999 as a result of a successful court challenges to the Town's denial of the Fellowship's requests on the ground that the vacant property was used for Fellowship children's recreation, parking and other uses relating to the Fellowship's religious purposes as state law required for such religious use exemptions. Plaintiffs' Exhibit 9. No taxes were paid by Plaintiffs on the 3125 Genesee property as the Fellowship was granted a stay on payment of the disputed 1998 and 1999 real property taxes pending the outcome of a judicial challenge to the Town's denial of its exemption requests for those tax years. Conway Deposition at 57. On December 21, 2001, New York Supreme Court, Appellate Division affirmed an order of Supreme Court, Erie County, Justice Robert E. Whelan, the trial court, granting the Fellowship's request for exemption from the Town's real property taxes for tax years 1998 and 1999. Plaintiffs' Exhibit 9.²⁶ Plaintiffs do not allege the Fellowship ever paid taxes on the property for the disputed tax years or, if it did, that it did not receive a full refund with interest following the successful judicial challenge in the state courts. Tax foreclosure proceedings based on back taxes and related payments, owed by the Fellowship on the property for 1998 and 1999, were also stayed by an agreement between the Fellowship and Erie County pending Plaintiffs' judicial challenge to the Town's denials. Conway Deposition at 56-57. Although the Fellowship's 1995 application for a tax exemption for 3125 Genesee Street was denied by the Town, the denial, as noted, was judicially challenged by the Fellowship, and the denial was upheld by decision of New York Supreme Court. Raum Declaration ¶ 5. This decision was not further appealed by Plaintiffs. Id.

26 New Creation Fellowship of Buffalo v. Board of Assessment Review, 735 N.Y.S.2d 291 (App.Div. 4^th Dep't 2001).

The Fellowship did not renew its tax exemption request for the property until 1998 as, despite the earlier 1995 tax exemption denial, the 3125 Genesee property was thereafter, as Plaintiffs state, "being used more and more for activities related to the Fellowship's religious mission." Raum Declaration ¶ 12. Additionally, while Plaintiffs complain, as of February 13, 2002, that Conway has failed to advise Plaintiffs if the Town intends to abide by the court rulings in Plaintiffs' favor as to the property for future tax years, Raum Declaration ¶ 23, Plaintiffs do not state the property has been unlawfully taxed or that they have paid any taxes on the property for tax years after 1999. As noted, Justice Whelan granted the tax exemption to the Fellowship on May 3, 2000. Conway Deposition at 60. Thus, neither at the time the Complaint was filed in July 1999, nor when Plaintiffs filed their opposition to Defendants' motion in February 2002, was the Fellowship ever forced, as a result of the alleged discriminatorily motivated tax exemption denials, to pay any local real property taxes on 3125 Genesee Street since their unsuccessful 1998 application for an exemption.²⁷ Nor do Plaintiffs assert, in support of the requirements for standing to claim the constitutional violations asserted in this case, any significant diversion of Fellowship organizational resources, such as attorneys fees and related expenses incurred in challenging the alleged discriminatory tax exemption denials and Defendants' enforcement actions under the Tree Preservation Ordinance. Plaintiffs also do not claim their religious functions or duties, as an organization, pastor or administrator, were significantly diluted by the tax exemption application process and related litigation.

27 According to Conway, the Fellowship owed taxes on the property for 1996, 1997, 1998 and 1999. Plaintiffs' Exhibit 7 at 5. While the failure to pay the back taxes did place the Fellowship's property at risk of being included in the 1999 tax foreclosure proceeding conducted by Erie County, the Fellowship had entered into an agreement with Erie County which, under state law, exercises tax foreclosure authority for unpaid town and county taxes, to make payments for the unpaid taxes to prevent the property from being included in the county's tax foreclosure proceeding, id. at 5; however, while Raum stated that the unpaid taxes were being paid by the Fellowship, no distinction was made as to whether such payments were for 1995, 1996 or 1997, the tax years for which the Fellowship either was denied an exemption (1995) or did not apply for one (1996, 1997) or, specifically, 1998 and 1999, the years for which the exemptions were eventually obtained but for which no taxes were actually paid pending litigation.

Although the alleged withdrawals of prior approval of the Fellowship's improvement plans and work stoppages on the site by Ulatowski, including the removal of underbrush and trees, undoubtedly interrupted such activities carried out by Fellowship member volunteers, Raum Declaration ¶¶ 26-30; Grant Deposition at 63-64, 73, Plaintiffs do not contend that such brief periods of interruption for the intended improvement work comes within the First Amendment's protections as a form of protected religious exercise, free speech, or freedom of association. Rather, Plaintiffs alleged in the Complaint that the Defendants' actions hindered improvement and development of the site and thereby interfered with Plaintiffs' First Amendment free exercise, speech and association rights arising from Plaintiffs' desired use of the property in connection with religious activities and services conducted or sponsored by the Fellowship at its church building. Complaint ¶¶ 20a-20b. However, this assertion is negated by the record. For example, as discussed, Discussion, supra, at 32-35, in connection with the issue of the Town's denial of the Fellowship's request for tax exemptions for 1998 and 1999, the property has in fact been used, as Plaintiffs proffered before the Board in support of their request for a tax exemption, and as the Appellate Division found in ruling in favor of the Fellowship's tax exemption request, by the Fellowship for "additional parking . . . during Church services, for outdoor prayer meetings, and as a play area for the children who attend the [Fellowship] Church." New Creation Fellowship, supra, 735 N.Y.S.2d. 291. Further, in the successful state court litigation challenging the 1998 and 1999 denials, the Fellowship also "established that it has approved plans for improvements to the land and has begun to implement those by removing brush and debris from the parcel, grading the parcel and removing an advertising sign." Id. (underlining added). Many of these improvements were approved by the Town by action of the Town Planning Board on September 11, 1997 as part of the Fellowship site improvement plan application process, which new application Plaintiffs allege was itself one of Defendants' discriminatory actions taken against the Fellowship. Complaint ¶ 20 a. Defendants' Exhibits K, M and N.

Thus, the record demonstrates that, contrary to the allegations in the Complaint, no admissible evidence is presented by Plaintiffs in opposition to summary judgment showing that, as a result of Defendants' alleged interference with Plaintiffs' planned improvements to the property and other misconduct, the Fellowship was prevented from completing the improvements to the property or that the Fellowship experienced any curtailment to its religious programs resulting from the Fellowship's expanded use of the property for additional parking, a children's play area, family picnics, and outdoor religious services. Plaintiffs also fail to demonstrate that any delays in completing the improvements at the site that may have occurred substantially interfered with the enjoyment of their protected free exercise, speech and associational rights based on usage of the property or at the Fellowship church building at 3325 Genesee Street. Indeed, Grant's and Raum's statements at the 1998 and 1999 tax exemption hearings before the Board, as well as the deposition testimony and affidavits of Andzel and Grant opposing summary judgment, indicate such delays had no appreciable impact on the Fellowship's use of the property from the time of its purchase in 1994 to the date Plaintiffs commenced the instant litigation. Thus no probably injury to Plaintiffs' First Amendment rights based on Defendants' actions appears on the record of this case.

Turning to Plaintiffs' assertions that Defendants interfered with Plaintiffs' religious beliefs and practices, as set forth in Plaintiffs' First Cause of Action, the record is similarly devoid of any admissible evidence that Defendants' alleged actions in fact injured Plaintiffs' rights under the Free Exercise Clause. First, the two visits by Papero to the Fellowship during its regular Sunday services do not demonstrate that such services were disrupted.²⁸ Papero's first visit in early October 1997 occurred while those in attendance were dispersing after the conclusion of the Fellowship's formal services. Andzel Deposition at 55-56. On the second occasion, two weeks later, Andzel continued the service despite the alleged commotion created by Papero in the Fellowship's church building vestibule or foyer. Id. at 64. On both occasions, Papero was standing in the foyer, not in the sanctuary or auditorium of the building where Andzel's sermon was being given. Grant Deposition at 14, 47, 49-50. Moreover, neither Andzel nor Grant have claimed, by affidavit or in their deposition testimony, that either was unable to practice his religious beliefs because of Papero's actions. Nor have Plaintiffs submitted any evidence that the incidents involving Papero restricted or coerced any exercise of religion by the Fellowship's members who attended the services Papero allegedly disrupted. Although Grant testified he may have been participating in a "ministry line," following completion or "wrapping up" of Andzel's sermon, when congregants "came forward and request special prayers," no evidence is offered suggesting that any such member was unable to participate in the "ministry line," or was denied "special prayers" if such prayers had been requested to the extent Grant's involvement in such activities was required by Plaintiffs' religion.

28 For the purposes of this discussion only, because neither Papero or Mueller are named as Defendants, the court assumes Papero's and Mueller's conduct may be attributed to Defendants.

Regarding the service, by Officer Mueller on October 22, 1998, of the summons, based on Ulatowski's criminal complaint on Grant for violations of the Tree Preservation Ordinance, the record also fails to demonstrate that Officer Mueller's conduct interfered in any way with Plaintiffs' right to the free exercise of the Fellowship's professed religious beliefs. Mueller's service of the summons occurred at the end of a special Friday evening public lecture held at the Fellowship, given by an out of town guest speaker, as those in attendance had gathered in the Fellowship church building's foyer for refreshments and conversation following the lecture. Andzel Deposition at 69, 70-72; Grant Deposition at 76-77. However, Plaintiffs submit no evidence attesting that the lecture was of a religious nature or that other religious exercises involving Plaintiffs' religious beliefs were being conducted that evening in connection with the lecture.²⁹ Even assuming, arguendo, that the guest lecture constituted a form of religious exercise by Plaintiffs, and that Mueller conducted himself in an unpleasant manner in serving the summons during his arrival at and departure from the Fellowship's church building, as described by Plaintiffs, Grant Deposition at 81, Plaintiffs offer no evidence suggesting that any of Plaintiffs' religious activity, speech, or social interaction of a religious nature by Andzel, Grant, any member of the Fellowship, Bishop, the guest lecturer, or public attendee at the lecture, was in fact interfered with by Mueller as to such activity, speech or social gathering at that time. Indeed, when Mueller arrived at the Fellowship's church building to serve the summons, Grant Deposition at 7,³⁰ Andzel and the guest speaker, Bishop, were not present as Andzel was then in an automobile driving the guest speaker to the airport for Mr. Bishop's departure. Andzel Deposition at 70-72. Andzel recalled that he was informed by cellular telephone that Officer Mueller arrived as Andzel was driving toward the airport, Andzel Deposition at 72, and that Andzel never saw Mueller's police car even after Andzel returned to the Fellowship. Id. at 75-76. Thus, Mueller's actions neither interfered with nor diminished Andzel's ability to preach or exercise his religious beliefs, or Bishop's, assuming the lecture was a form a religious exercise.

29 Marcus Bishop, the guest speaker, is "from another part of the country, well-known, very popular [and] gifted man." Grant Deposition at 75. Significantly, no religious credentials are ascribed by Plaintiffs to Mr. Bishop.

30 Although not entirely clear from the record, Plaintiffs do not dispute that the criminal complaint was served upon Grant in addition to the summons. Defendants' Rule 56 Statement ¶¶ 40-41; Plaintiffs' Rule 56 Statement ¶ 25.

Additionally, again assuming for discussion purposes only that the guest lecture constituted a form of religious exercise by Plaintiffs, a fact not supported by the record, when Grant received the summons from Mueller, the program at the Fellowship's church building had ended, and neither Andzel nor the speaker were present as Andzel was then driving the speaker to the airport. Further, even if the program had not ended, it is undisputed that Grant was not taken into custody and, therefore, the service of the summons upon him could not have prevented Grant from exercising any of his First Amendment liberties that evening, particularly those arising under the Free Exercise Clause. Moreover, no attendee at the lecture has averred that his or her First Amendment liberties were somehow abridged by Mueller's actions that evening. Plaintiffs make no claim that service by Mueller of the summons upon Grant constituted an unlawful seizure in violation of the Fourth Amendment. See Britton v. Maloney, 196 F.3d 24, 30 (1^st Cir. 1999) (pre-arraignment appearance ticket without more not a seizure under Fourth Amendment), cert. denied, 503 U.S. 1204 (2000). Compare Murphy v. Lynn, 118 F.3d 938, 942 (2d Cir. 1997) (post-arraignment recognizance release constitutes seizure), cert. denied, 522 U.S. 115 (1998).

Finally, although the Complaint stated that Defendants' actions have had a continued "chilling effect" on attendance at Fellowship religious "functions," and "may even discourage some from attending the church altogether," Complaint ¶ 34 (underlining added), id., the only admissible evidence Plaintiffs have adduced supporting this generalized assertion is Andzel's averment in his opposing affidavit that because of alleged "constant police activity and presence at [the Fellowship] . . . many [people] have ceased attending [the Fellowship]," or discontinued volunteer work. Andzel Affidavit ¶ 44. No admissible evidence, however, corroborates this inadmissible hearsay. Observations and conclusions based on the nonverbal conduct of nondeclarants, asserted by a declarant, constitutes hearsay. Fed.R.Evid. 801(a)-(c); 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.") Bernhardt v. Interbank of New York, 18 F.Supp.2d 218, 224 (E.D.N.Y. 1998) ("[H]earsay evidence that would be admissible at trial cannot create a triable issue of fact on summary judgment."). Andzel's attempt to relate or describe the conduct of Fellowship members regarding their activities with the Fellowship is therefore inadmissible hearsay insufficient to defeat summary judgment. Plaintiffs make no attempt to demonstrate with admissible evidence, such as business records, as an exception to the hearsay rule, any decline in Fellowship membership or income since the time the Defendants' alleged conduct took place, particularly after Papero's two brief encounters with Grant in October 1997 and Officer Mueller's unmannerly, as Plaintiffs claim, service of the summons upon Grant on October 22, 1998. Raum Declaration ¶ 60. For example, no present or former Fellowship member has stated he or she was deterred from participating in any of the Fellowship's religious activities because of Defendants' alleged First Amendment violations as described in the Complaint. Asked at his deposition on May 20, 2000, if the Fellowship's membership had either increased or decreased since July 1992 when the new Fellowship facility in Cheektowaga opened, Andzel ambiguously stated, "I couldn't answer that with a yes or a no." Andzel Deposition at 23. Although in Grant's deposition, which followed Andzel's deposition the same day, Grant asserted that Fellowship membership decreased from about 350 or 400 in 1992 to "between 3-400," Grant Deposition at 10, documentation demonstrating the asserted "decrease" did not find its way into the record in response to Defendants' motion.³¹ No evidence reflecting any decline in either attendance at scheduled Fellowship services or donations has been provided in Andzel's or Grant's affidavit, or otherwise submitted by Plaintiffs in opposition to summary judgment. Plaintiffs' Exhibits 1 and 2 ( passim).

31 In any event, how the attendance figures as estimated by Grant ("300-400 in 1992" vs. "3-400" as of 2000), reasonably could be said to reflect a decrease in members hip is problematic. According to Grant, the Fellowship's record of membership is based on persons "who would participate in a membership class." Grant Deposition at 10. The nature or significance of participation in a Fellowship "membership class" or why the Fellowship has no records of such participation is not further explained in the record.

Significantly, neither Andzel nor Grant testified or averred that he was unable to exercise any of his First Amendment free exercise rights as a result of Defendants' conduct alleged in the Complaint. Nor has either explained how Defendants' actions materially interfered with his capacity to minister to the spiritual needs of Fellowship members in accordance with the Fellowship's religious beliefs. During Papero's two visits to the Fellowship in October 1997, Grant, who was standing in the sanctuary following the sermon, was either ushering or taking part in a "ministry line." Grant Deposition at 50, 59. As chief Fellowship administrator, meeting visitors to discuss official business, including legal matters involving the Fellowship, would be an expected part of his administrative responsibilities, Grant Deposition at 9, and, as such, it was within Grant's assigned area of administrative responsibility to meet Papero and respond to his requests, on behalf of the Town, regarding Plaintiffs' compliance with the Tree Preservation Ordinance as Marten had advised Brox. Therefore, Grant's encounters with Papero inside the Fellowship church building's foyer, each lasting about ten minutes, id. at 61, even if Grant's activities inside the sanctuary were briefly interrupted as a result of Papero's alleged insistence upon speaking immediately with a person in authority, cannot be found to have materially interfered with Grant's religious exercises, nor has any other Fellowship member then in attendance submitted evidence that Papero's conduct impaired the exercise of their religious beliefs. Particularly, as noted, Grant has not claimed the ministry line was interrupted, or that any Fellowship member was prevented from receiving Fellowship ministry or special prayers from Grant or Andzel. No showing is made by Plaintiffs that their free speech or associational rights were materially abridged by Defendants' conduct. In short, no admissible evidence has been presented by Plaintiffs, as is their burden, showing any actual interference by Defendants with any of Plaintiffs' First Amendment rights as described in the Complaint. Accordingly, having suffered no palpable injury to their First Amendment rights as a result of Defendants' conduct, Plaintiffs lack standing to sue on their First Amendment claims and, as such, Plaintiffs' First, Second and Fourth Causes of Action should be DISMISSED.³²

32 This finding also covers Plaintiffs' Fourth Cause of Action asserting a "hybrid" claim of First Amendment violations because such hybrid claim is founded upon Plaintiffs' First Amendment rights and is based on the same conduct alleged against Defendants.

Turning to Plaintiffs' standing to pursue their Equal Protection Clause claim, Plaintiffs' Third Cause of Action, that Grant was selectively prosecuted by Defendants through criminal proceedings in the Cheektowaga Town Court for violations of the Tree Preservation Ordinance based on a discriminatory motive and that Plaintiffs were subjected to disparate enforcement treatment under the Town's Building Code with respect to Plaintiffs' proposed improvements to the site, Complaint ¶¶ 39-43, the court also finds Plaintiffs lack standing based on the absence of admissible evidence demonstrating an actual constitutional injury. First, it is undisputed that at no time was Grant taken into custody when Officer Mueller served him with the summons. Grant Deposition at 79 (after serving the summons on Grant, Officer Mueller "arrogantly walks out."); Defendants' Exhibit DD at 2. Additionally, although Grant made repeated appearances in Town Court in connection with the charges, Plaintiffs' Exhibit 26 at 14, the case was resolved by entry of an adjournment in contemplation of dismissal pursuant to New York Criminal Procedure Law Section 170.55 ("§ 170.55")³³ ("ACD") with the condition that the Fellowship replace the trees illegally cut down. Id. at 16 (Proceedings of Cheektowaga Town Court, September 7, 1999).³⁴ That Grant received an ACD negates any possible finding that he, Andzel, or the Fellowship suffered any constitutional harm sufficient to sustain Plaintiffs' standing as a result of the Town's allegedly discriminatory prosecution.³⁵

33 Unless otherwise indicated references to N.Y. Crim. Proc. Law are to (McKinney's 1993).

34 The statutory six month period prior to dismissal was extended to permit sufficient time within which to allow the Fellowship to effect planting of the new trees. N.Y.Crim.Proc. Law § 170.55[2.]; Proceedings of Cheektowaga Town Court, March 14, 2000 at 7.

35 As neither the Fellowship itself nor Andzel was prosecuted, neither has standing to assert an Equal Protection claim based on the Town's prosecution of Grant.

"A § 1983 complaint must still allege a wrong to plaintiff. This requirement is not met by a claim seeking federal review of a state prosecution on grounds of unfairness, absent proof of denial of due process or a finding that the defendant was maliciously prosecuted upon a charge of which he was found not guilty." Singleton v. City of New York, 632 F.2d 185, 192-93, 195 (2d Cir. 1980) (an ACD does not, under New York law, constitute a disposition of "not guilty" and, thus, is insufficient to support a § 1983 claim) (underlining added). Because Grant received an ACD deposition, Grant was not found "not guilty" of violating the Tree Preservation Ordinance. Thus, the undisputed fact that Grant accepted the ACD disposition of the Town's criminal complaint, regardless of his actual guilt, negates the threshold requirement for purposes of a § 1983 action of showing that Plaintiffs suffered a cognizable legal harm to their rights of equal protection as a result of Defendants' alleged selective prosecution of Grant. Compare Leather v. Ten Eyek, 180 F.3d 420, 423 (2d Cir. 1999) (finding § 1983 claim for selective prosecution which resulted in plaintiff's conviction after trial for driving while impaired not barred by Heck v. Humphrey, 512 U.S. 477 (1994)).

Additionally, Plaintiffs have failed to submit any admissible evidence from which it could be inferred that Plaintiffs suffered any actual harm to any First Amendment or other constitutional interests as a result of the alleged selective prosecution or disparate enforcement described in the Complaint. For example, no testimony by either Andzel or Grant intimates their ability to perform their official responsibilities on behalf of the Fellowship and its membership, including any religious services or ministries offered by the Fellowship, was impaired as a result of Defendants' discriminatory enforcement of the Town's Tree Preservation Ordinance or the Town's Building Code. Nor is there any evidence submitted in opposition to the instant motion to infer that the alleged harassment by the Town described in the Complaint is likely to continue.

Moreover, as discussed in connection with whether Plaintiffs have demonstrated standing with respect to their First Amendment claims, Discussion, supra, at 22-43, no Fellowship members aver that the Town's alleged discriminatory enforcement of its ordinances, or denial of Plaintiffs' tax exemption requests, caused such members to reduce their participation in the Fellowship's religious activities including its ministry to inner city poor, financial contributions to the Fellowship, or volunteer involvement in Fellowship programs and projects. Further, neither Andzel nor Grant, nor any other Fellowship member, stated that the fact of the criminal proceedings in Town Court against Grant for alleged violations of the Tree Preservation Ordinance caused them to choose not to participate in any of the Fellowship's religious programs, to decide not to join the Fellowship as a member, or not to attend the Fellowship's Sunday services, or any special program sponsored by the Fellowship. Finally, no sentence of incarceration, probation, or fine was imposed against Grant. Although as a condition of the ACD, Grant and the Fellowship were ordered to plant eight trees to replace those allegedly unlawfully removed, as of November 15, 2001, more than two years after commencing this action, Plaintiffs had not yet planted the trees, thereby avoiding potentially incurring a diversion of the Fellowship's financial resources sufficient to establish a demonstrable constitutional harm and standing. Roshia Affidavit ¶ 39. To date, Plaintiffs have not disputed this statement. Significantly, there is no indication in the record of any effort being taken or threatened by Defendants, or the Town court, to enforce this condition of the ACD against Plaintiffs.

Therefore, the court finds Plaintiffs have failed to demonstrate any injury in fact suffered by them flowing from the alleged violation of their Equal Protection rights and, as such, there is no constitutional standing to pursue this claim. Accordingly, Plaintiffs' Equal Protection claim, the Third Cause of Action, based on Defendants' selective enforcement of its ordinances as applicable to Plaintiffs' intended improvements to 3125 Genesee Street, and Grant's violations of the Tree Preservation Ordinance should also be DISMISSED for lack of subject matter jurisdiction.³⁶ Alternatively, should the District Judge find that Plaintiffs have established constitutional standing, and thus subject matter jurisdiction, the court turns to Defendants' motion for summary judgment seeking dismissal on the merits of all of Plaintiffs' federal claims and dismissal of Plaintiffs' state law claims pursuant to 28 U.S.C. § 1367(c).

36 In the absence of subject matter jurisdiction to support Plaintiffs' First and Fourteenth Amendment claims, Plaintiffs' hybrid claim, Plaintiffs' Fourth Cause of Action, based on such constitutional violations also fails and Plaintiffs' state law claims must be dismissed pursuant to 28 U.S.C. § 1367(c) (supplemental jurisdiction may be exercised only to extent district court has original jurisdiction over a claim). See Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1188 (2d Cir. 1986) ("since a court must have original jurisdiction in order to exercise supplemental jurisdiction, a dismissal pursuant to Rule 12(b)(1) [for lack of original jurisdiction] precludes a court from exercising supplemental jurisdiction over related state claims.").

2. Summary Judgment

Summary judgment of a claim or defense will be granted when the moving party demonstrates that there are no genuine issues as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a) and (b); Celotex Corp. v. Catrett, 477 U.S. 317, 331 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986); Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir. 1991). Specifically, summary judgment on a claim shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits . . . show that there is no issue as to any material fact, and the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party for summary judgment bears the burden of establishing the nonexistence of any genuine issue of material fact. If there is any evidence in the record based upon any source from which a reasonable inference in the nonmoving party's favor may be drawn, the moving party cannot obtain summary judgment. Celotex, at 331. "[T]he 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, supra, at 247-48.

Whether a fact is material depends on the substantive law of the claim and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. at 248.

[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the 'pleadings, depositions, answers to interrogatories, and admissions on file.' Such a motion, whether or not accompanied by affidavits, will be 'made and supported as provided in this rule [Fed.R.Civ.P. 56],' and Rule 56(e) therefore requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'

Celotex, supra, 477 U.S. at 324 (quoting Fed.R.Civ.P. 56).

Thus, "as to issues on which the non-moving party bears the burden of proof, the moving party may simply point out the absence of evidence to support the nonmoving party's case." Nora Beverages, Inc. v. Perrier Group of America, Inc., 164 F.3d 736, 742 (2d Cir. 1998).

Once a party moving for summary judgment has made a properly supported showing as to the absence of any genuine issue as to all material facts, to defeat summary judgment the nonmoving party must come forward with evidence that would be sufficient to support a jury verdict in its favor. Goenaga v. March of Dimes Birth Defects Foundation, 51 F.3d 14, 18 (2d Cir. 1995). In opposing a motion for summary judgment a party "may not simply rely on conclusory statements or on contentions that the affidavits supporting the motion are not credible." Id. (citing cases). Further, where the burden of proof on an issue for which summary judgment is sought is on the movant, should the movant fail to meet its initial burden of establishing the absence of any genuine issue of material fact as to that issue, the nonmovant will prevail even if the nonmovant submits no evidentiary matter establishing there is indeed a genuine issue for trial. Zanghi v. Incorporated Village of Old Brookville, 752 F.2d 42, 47 (2d Cir. 1985).

Pursuant to 42 U.S.C. § 1983, a person may seek damages and equitable relief against any person who, acting under color of state law, subjects such person to the deprivation of any rights, privileges, or immunities protected by the Constitution or laws of the United States. 42 U.S.C. § 1983 ("§ 1983"). Infringement of an established federal right must be alleged in asserting a § 1983 civil rights claim. Baker v. McCollan, 443 U.S. 137, 140 (1979). In this case, Plaintiffs allege violations of their First Amendment rights to free religious exercise, speech and association, the Fourteenth Amendment's Equal Protection Clause, and similar rights protected under the New York State constitution. Specifically, Plaintiffs claim Defendants harassed and obstructed Plaintiffs in their efforts to improve the Fellowship's property at 3125 Genesee Street for use in furtherance of the Fellowship's alleged religious programs and obtain a real property tax exemption on the property, disrupted Plaintiffs' religious services because of Plaintiffs' religious beliefs and the racial makeup of the Fellowship's membership which Plaintiffs assert included a large number of African Americans and Hispanics who were unwelcome to local residents, and subjected Grant to selective prosecution for violating the Town's Tree Preservation Ordinance because of Plaintiffs' religious beliefs and the Fellowship's special ministry to inner city racial minorities, some of whom attended the Fellowship's religious services and programs. Plaintiffs also claim Defendants' actions were based upon an official custom and practice and influenced unnamed persons to intimidate Fellowship members and vandalize of Fellowship property, thereby imposing § 1983 liability on the Town.

Defendants seek summary judgment arguing that Plaintiffs have failed to produce evidence raising triable issues that Defendants (1) unlawfully prevented Plaintiffs' intended use of their property for religious purposes by selectively enforcing the Town's Building Code and Zoning Ordinance, particularly the Tree Preservation Ordinance against the Fellowship and Grant;³⁷ (2) maintained a policy and practice of discrimination against Plaintiffs based on the race of the Fellowship's' congregants and the nature of Plaintiffs' religious beliefs; or (3) disrupted the Fellowship's religious services and otherwise interfered with Plaintiffs' right to the free exercise of Plaintiffs' religious beliefs, Plaintiffs' freedom of speech and association, and Equal Protection Clause protections. Defendants' Memorandum of Law at 10-11, 15, 17, 20-21. 3. Requirements for Liability Applicable to Plaintiffs' Claims

37 For purposes of this Discussion, references to the alleged violations of the Fellowship's rights includes the alleged violation of rights of Andzel and Grant as both individuals have, as previously noted, elected to sue only in their official capacity. Defendants do not contend that the Fellowship, as a religious corporation, lacks prudential or statutory standing to assert any of the § 1983 claims alleged.

Several principles basic to § 1983 actions apply to Defendants' motion attacking the merits of Plaintiffs' constitutional claims. First, for liability to attach against a person in his individual capacity, for § 1983 purposes, requires the involvement of the defendant sufficient to show personal responsibility for the alleged violation. Akil Al-Jundi v. Rockefeller, 885 F.2d 1060, 1064 (2d Cir. 1989) (quoting Johnson v. Glick, 481 F.2d 1028, 1034 (2d Cir.), cert. denied, 414 U.S. 1033 (1973)). "In this Circuit personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977), cert. denied, 434 U.S. 1087 (1978). Thus, unless an individual is named as a defendant in the complaint, no § 1983 liability may be imposed upon such nonparty, based on such person's conduct. Hendrickson v. United States Attorney General, 1994 WL 23069 (S.D.N.Y. 1994) *2 (civil rights complaint must allege facts against named defendant).

Further, under § 1983 the personal culpability of a particular individual defendant, or a nonparty, may not be imputed or attributed to another defendant based solely upon an agency or employment relationship. Monell v. New York City Dep't of Soc. Services, 436 U.S. 658, 692 (1978). "Congress did not intend § 1983 liability to attach where such causation [is] absent." Id. (citing Rizzo v. Goode, 42 U.S. 362, 370-71 (1976)) (bracketed material added). Thus, neither respondeat superior, nor other forms of vicarious liability, can be the basis of § 1983 liability. Monell, supra, 436 U.S. at 691, 692; Back v. Hastings on Hudson Union Free School District, 365 F.2d 107,127 (2d Cir. 2004); Amnesty America v. Town of West Hartford, 361 F.3d 113, 125 (2d Cir. 2004). Nevertheless, a supervisor may be individually liable for the constitutional violations of an employee, acting under color of state law, if the supervisor participated directly in the alleged violation by the employee, failed to "remedy the wrong" after being informed of the employee's violation through a report or appeal, (i) created an official policy or custom under which the employee's unconstitutional conduct occurred, (ii) was grossly negligent in supervising subordinates who committed the wrongful acts, or (iii) was deliberately indifferent to information that the unconstitutional acts were occurring. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).

Finally, municipalities, like the Town, may be liable for constitutional violations through actions attributable to its officials, employees or agents only where "the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulations, or decision officially adopted and promulgated by that body's officers," Monell, supra, 436 U.S. at 690, and "when the government's policy or custom . . . inflicts the [constitutional] injury." Id. at 694; see also Erickson v. County of Chautauqua, 1986 WL 3106, *2 (W.D.N.Y. 1986) (acts of trespass and physical damage to plaintiff's property by employees or contractors of sewer district insufficient to establish § 1983 liability for alleged due process violations absent showing such actions resulted from official policy or sewer district's failure to adequately train or supervise its employees or contractors). The actions of public officials whose "edicts or acts may fairly be said to represent official policy" of a municipality may also serve as the basis of § 1983 liability against a municipality. Monell, supra, 436 U.S. at 694.

While the actions of a nonemployee of a municipality carried out pursuant to a municipal policy may suffice to impose § 1983 liability upon a municipality, such liability can accrue only where it is shown that the municipality, through its policymakers, was deliberately indifferent to the consequences of its failure to properly train or supervise the nonemployee committing the constitutional violation, and that the nonemployee acted under color of law. City of Canton, Ohio v. Harris, 489 U.S. 378, 387 (1989); Rochez v. Mittleton, 835 F.Supp. 1075, 1079-80 (S.D.N.Y. 1983 (citing Lugan v. Edmundson Oil Co., 457 U.S. 922, 937 (1982)). The Board of Assessment Review is established as a matter of state law as a town appointed legislative body. See N.Y. Real Property Tax Law ("N.Y. Real Prop. Tax Law") § 523a-b (McKinney 2000)³⁸ Whether, for purposes of § 1983 liability, the Board of Assessment Review is sufficiently separate from the Town and, thus, is a proper party to this action, turns on the extent to which the Board is supervised by the Town and the Board's source of funds for satisfying judgments against the Board. See Rosa R. v. Connelly, 889 F.2d 435, 437 (2d Cir. 1989) (discussing in the context of Eleventh Amendment immunity, whether a local board of education is protected from suit in federal court under § 1983); Hee v. Everlof, 812 F.Supp. 1350, 1351 (D.Vt. 1993) (observing that municipality, rather than municipality's police department, was proper defendant in civil litigation as police department can act only through its officers, who are appointed by the municipality, and any damages awarded against police department would be paid out of municipality's treasury); Tom Sawyer Motor Inns, Inc. v. Chemung County Sewer District No. 1, 305 N.Y.S.2d 408, 411-12 (App.Div. 3d Dep't 1969) (as defendant sewer district's sole function was administrative, sewer district was merely administrative unit of the county and was not suable; rather, county was real party in interest liable to plaintiff for damages attributed to sewer district). Here, as the members of the Board of Assessment Review are appointed by the Town, the Board's sole function is to provide administrative review of the decision of Conway as the Town Assessor, and any damages attributed to the Board would necessarily be paid by the Town given that the has no separate source of funding, the Town is the proper defendant as to any claims brought against the Board of Assessment Review.³⁹

38 Unless otherwise indicated, references to N.Y. Real Property Tax Law are to "McKinney 2000."

39 Insofar as Plaintiffs have made specific allegations against the Board of Assessment Review, should the District Judge disagree with the recommendation that such claims are, as a matter of law, against the Town, the court analyzes such claims against the Board as a separate defendant.

In order for § 1983 liability to attach to a superior or principal based on an alleged failure to train a municipal employee or agent, an employee or agent of the superior must be found to be liable to the § 1983 plaintiff based on the individual employee's or agent's conduct. See City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (absent a constitutional injury caused by municipal employee, fact that municipal policy may have authorized potential for unconstitutional conduct does not create liability). "[A] claim of inadequate training and supervision cannot be made out against a supervisory body without a finding of a constitutional violation by the persons supervised." Ricciuti v. N.Y.C. Transit Authority, 124 F.3d 123, 131 (2d Cir. 1997) (citing Heller, supra, 475 U.S. at 799); Martinez v. Colon, 54 F.3d 980, 990 (1^st Cir. 1995) (same).

Liability under § 1983 may be imposed against a municipality where a plaintiff's constitutional rights are directly injured by adoption of an ordinance or policy by the municipal governing body. City of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981) (city ordinance canceling rock concert held to establish municipal policy and liability under § 1983). A policy established by a municipal department or agency may also serve as the basis of § 1983 liability. Monell, supra, 436 U.S. at 691 ("practices of [local] officials so permanent and well-settled as to constitute a 'custom or usage' with the force of law may also be sufficient for § 1983 purposes."). "The liability of the municipality for customary constitutional violations derives not from its creation of the custom, but from its [the municipality's] tolerance of or acquiescence in it." Britton v. Maloney, 901 F.Supp. 444, 450 (D.Mass. 1995). To be found to have acquiesced in a custom or practice that violates a plaintiff's constitutional rights, it is also necessary to show that the municipality or an authorized decisionmaker "ha[s] either actual or constructive notice of [the] alleged custom." Gregory v. Shelby County, 220 F.3d 433, 440-42 (6th Cir. 2000). Thus, a municipality may be liable for § 1983 injuries where an "authorized policy maker approve[d] a subordinate's decision and the basis for it." City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988) (plurality opinion). Additionally, "[w]here a policymaking official exhibits deliberate indifference to constitutional deprivations caused by subordinates, such that the official's inaction constitutes a 'deliberate choice,' that acquiescence may be properly thought of as a city 'policy or custom that is actionable under § 1983.'" Amnesty America, supra, 361 F.3d at 126 (quoting City of Canton, supra, 489 U.S. at 388 (citations omitted)). See also Jeffes v. Barnes, 208 F.3d 49, 63 (2d Cir. 2000) (holding that sheriff's acquiescence in unconstitutional retaliation could be inferred from his tolerance and encouragement of harassment of plaintiffs). "[A] single instance of deliberate indifference to subordinates' actions can provide a basis for municipal liability." Amnesty America, supra, 361 F.3d at 126.

To be actionable under § 1983, a municipal policy which causes the alleged violation must be one made by a "decisionmaker [who] possess[es] final authority to establish municipal policy with respect to the action ordered." Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986). Such authority may flow from "legislative enactment" or by way of a delegation of authority from an official who possesses such final policy making power. Id. Whether the official had the requisite final policymaking authority is to be determined by reference to state law. Id. Such determination is made by the court as a matter of law, and is not a triable issue of fact. Jett v. Dallas Independent School District, 491 U.S. 701, 737 (1989); Praprotnik, supra, 485 U.S. at 124.

Discretionary actions by municipal employees, or others acting under color of municipal law, do not represent municipal policy established by officials with final policymaking authority. Praprotnik, supra, 485 U.S. at 126. However, such discretionary decisions resulting in the alleged constitutional violation may impose liability upon a municipality if they result from a "widespread practice that, although not authorized by written law or express municipal policy, is 'so permanent and well settled' as to constitute a 'custom or usage' with the force of law." Id. (quoting Adickes v. S.H. Kress Co., 398 U.S. 144, 167-68 (1970)). Further, when a subordinate official's discretionary acts are "constrained by policies not of that official's making, those policies, rather than the subordinate's departures from them, are the act of the municipality." Propratnik, 485 U.S. at 127. If, however, the subordinate's discretionary decision is reviewed by the municipality's final policy makers, their approval of the discretionary decision constitutes a ratification of the subordinate's action "chargeable to the municipality." Id. See also Sorlucco v. New York City Police Dep't, 971 F.2d 864, 870-71 (2d Cir. 1992) (manifest misconduct of subordinate implies "constructive acquiescence of senior policy-making officials"). Thus, it has been held that actions of the municipality's decision-makers or conduct that is "so widespread as to have the force of law," to the extent that it can be found to have been consciously endorsed by municipal officials, may also impose § 1983 liability upon a municipality as a form of municipal policy. Casey v. Newport School Committee, 13 F.Supp.2d, 242, 245 (D.R.I. 1998) (quoting Bd. of the County Comm. of Bryan Co., Okla. v. Brown, 520 U.S. 397, 404-05 (1997) (herein " Bryan County")). In Bryan County, supra, the Supreme Court held that a municipal decision maker must have acted with the intention to deprive plaintiff of his constitutional right sufficient to show the municipality was the "'moving force' behind the alleged injury." Bryan County, supra, 520 U.S. at 404-05 (quoting Monell, supra, 436 U.S. at 694).

Additionally, for § 1983 liability to attach, "the plaintiff must establish the state of mind required to prove the underlying violation." Bryan County, supra, 520 U.S. at 405. An "intentional" deprivation is required; "simple or even heightened negligence will not suffice." Id. at 407. "[A] plaintiff seeking to establish municipal liability on the theory that a facially lawful municipal action had led an employee to violate a plaintiff's rights must demonstrate that the municipal action was taken with deliberate indifference to its known or previous consequences." Id. (quoting City of Canton, supra, 489 U.S. at 388 (evidence in excessive force case against deputy sheriff insufficient to impose § 1983 liability upon county based on alleged indifference to substantial risk that defendant's propensity for violence would likely result in constitutional violations involving excessive force)). "Where a plaintiff claims that the municipality has not directly inflicted an injury, but nonetheless has caused an employee to do so, rigorous standards of culpability and causation must be applied to ensure that the municipality is not held liable [under § 1983] for the actions of its employees." Id. at 405 (internal citations omitted). With these principles in mind, the court turns to the merits of each of Plaintiffs' federal claims against each Defendant.

4. Plaintiffs' Free Exercise of Religion Claim — First Cause of Action A. The Scope of Free Exercise Clause Protection

Plaintiffs' First Cause of Action alleges that Defendants interfered with their right to free exercise of their religion as protected by the First Amendment. Complaint ¶¶ 31-34. Specifically, Plaintiffs claim that Defendants' actions "block[ing] the Church's intended religious use of their [ sic] property" by issuing stop work orders on the Plaintiffs' cleanup and improvements to the vacant site at 3125 Genesee Street, disrupting Fellowship religious services, imposing unjustified conditions and requiring unwarranted reapplication for official approval of Plaintiffs' site improvement plans, commencing a criminal prosecution against Grant, as a Fellowship administrator, to enforce the Tree Preservation Ordinance, and causing the summons, issued on the Town's criminal complaint against Grant, to be served "during a special service" sponsored by the Fellowship, caused Plaintiffs substantial harm, including "a chilling effect" on Plaintiffs' exercise of "their religious rights, speech and association at religious functions," and "may even [have] discourage[d] some [people] from attending the [Fellowship's] church altogether." Complaint ¶¶ 23-25, 27, 28, 34, 38.

The Free Exercise Clause of the First Amendment provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .," U.S. Const., amend. 1, cl. 1, and is applicable to the states and their subdivisions through the Fourteenth Amendment. Employment Div., Dep't of Human Resources of Ore. v. Smith, 494 U.S. 872, 877 (1990) (holding state agencies may restrict use of peyote in religious exercises and citing Cantwell v. Connecticut, 510 U.S. 296, 303 (1940)). The guarantee of free exercise of religion pertains to the right to believe and profess whatever religious doctrine one desires, thereby excluding any government regulation of religious beliefs as such. Smith, supra, 494 U.S. at 877 (citing Sherbert v. Verner, 374 U.S. 398, 402 (1963)). Further, the First Amendment prohibits government from compelling a person's affirmation of any religious belief, punishing the expression of any religious doctrines it believes to be false, imposing special disabilities on the basis of religious views or status, or lending its power to one side or another in controversies concerning religious authority or dogma. Id. The First Amendment guarantee of free exercise of religion protects against government interference not only religious beliefs and the profession of such beliefs, but also the performance or abstention from physical acts, and a state's banning of such acts or abstentions when they are engaged in solely for religious reasons or for the religious beliefs displayed, is equally unconstitutional. Id.

Nevertheless, an individual's religious beliefs and their related exercise do not "excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate." Smith, supra, 494 U.S. at 878-79. As the Supreme Court in Smith observed

Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities.

Id. at 879 (quoting Minersville School Dist. Bd. of Ed. v. Gobitis, 310 U.S. 586, 594-95 (1940) (Frankfurter, J.) (internal quotation marks and footnote omitted)). In general, the right of free exercise does not relieve an individual of the obligation to comply with a "valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)." United States v. Lee, 455 U.S. 252, 263 n. 3 (1982) (rejecting asserted exemption from social security taxes by Amish employer based on claimed conflict with First Amendment protected religious beliefs) (Stevens, J., concurring) (parenthetical in original). Thus, "Smith held that neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling governmental interest." City of Boerne v. Flores, 521 U.S. 507, 514 (1997). See also Church of the Lukumi Babalu Aye, Inc., supra, 508 U.S. at 521 ("Under the Free Exercise Clause, a law that burdens religious practice need not be justified by a compelling governmental interest if it is neutral and of general applicability.") (citing Smith, supra).

That general laws may regulate a church's use of its property without violating the Free Exercise Clause is also well established. St. Bartholomew's Church, supra, 914 F.2d at 354-55 (New York City landmark restoration ordinance restricting construction of a church office building adjacent to plaintiff's main house of worship sustained as a valid regulation of church's property — no violation of church's First Amendment free exercise rights); Congregation Beth Yitzchok of Rockland, Inc. v. Town of Ramapo, 593 F.Supp. 655, 662-65 (S.D.N.Y. 1984) (sustaining against First Amendment challenge enforcement of town's certificate of occupancy ordinance prohibiting unauthorized use by plaintiff synagogue of building on plaintiff's premises as a religious nursery school). See also Cornerstone Bible Church v. Hastings, 948 F.2d 464 (8th Cir. 1991) (city zoning law prohibiting church from conducting religious services in area zoned for commercial purposes did not violate First Amendment).

Here, there is no dispute that the Tree Preservation Ordinance, and the Town's Building Code and zoning requirements, as applicable to Plaintiffs' planned improvements to the site, and the state laws governing exemptions from local real property taxes for religious corporations at issue in this case, are laws of general applicability and do not represent discriminatory enactments directed at Plaintiffs' religious beliefs or the racial composition of the Fellowship's members. Rather, Plaintiffs contend that Defendants enforced the Town's Building Code and other ordinances, particularly the Tree Preservation Ordinance and the state's real property tax exemption eligibility criteria laws, otherwise neutral on their face, for discriminatory reasons, specifically because of official prejudice against Plaintiffs' religious beliefs, including Plaintiffs' alleged ministry to members of racial minority groups as well as the Fellowship's membership of a mixed race and ethnic character.

The Supreme Court has stated that enforcement against religious organizations of otherwise neutral laws for discriminatory motives is actionable under § 1983. Church of the Lukumi Babalu Aye, Inc., supra, 508 U.S. at 534. "Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality." Id. See also St. Bartholomew's Church, supra, 914 F.2d at 355 (no First Amendment violation arising from city's enforcement of religion-neutral landmark preservation ordinance absent, inter alia, a "discriminatory motive"). Such actionable discriminatory enforcement motives may arise from the "unconstitutional application" of otherwise constitutional municipal law or policies. Amnesty America, supra, 361 F.3d at 126. "Where plaintiffs allege that their rights were deprived not as a result of the enforcement of an unconstitutional official policy or ordinance, but by the unconstitutional application of a valid policy or by a city employee's single tortious decision or course of action, the inquiry focuses on whether the actions of the employee in question may be said to represent the conscious choices of the municipality itself." Id. If a municipal defendant caused its employees or agents to enforce its laws based on improper motives, or if such improper motives are known to municipal policymakers and the municipality fails, with conscious awareness of the risk flowing from a failure, to adequately train the employees responsible for such conduct, § 1983 liability may result. Id.

As noted, the gravamen of Plaintiffs' First Cause of Action under the Free Exercise Clause is that Defendants enforced the Town's ordinances and the state's local property tax exemption rules, otherwise valid on their face with respect to religion and race, for unconstitutional reasons based on an alleged hostility toward Plaintiffs' religious practices and the race and ethnicity of the Fellowship's members. The court therefore addresses whether, in response to Defendants' motion, Plaintiffs have put forth admissible evidence in support of each element of their Free Exercise claim sufficient to avoid summary judgment on the merits. Based on a thorough consideration of the extensive record on the instant motion, the court finds Plaintiffs have failed to do so.

Plaintiffs' Free Exercise Claim is grounded on Plaintiffs' allegations concerning the refusal of Defendants Conway and the Board of Assessment Review to grant the Fellowship the tax exemptions it requested for 1998 and 1999, visits by Papero to the Fellowship on two Sundays in October 1997, ostensibly to mark the dead trees on Fellowship property suitable for cutting and removal under the Tree Preservation Ordinance consistent with Marten's approval of Plaintiffs' planned improvements to the site, purposively delaying the Fellowship's attempts to complete its planned improvements to the site, Officer Mueller's service on Grant of the summons on October 22, 1998, for violations of the Tree Preservation Ordinance at the Fellowship's church building following a program featuring a guest speaker, disruptions, caused by Defendant Ulatowski's stop work orders, which disrupted the efforts of Fellowship volunteers in the course of making improvements to the 3125 Genesee Street property, the creation of a hostile "public climate" toward the Fellowship resulting in race based harassment of the Fellowship and its members, and the failure of the Town police to adequately investigate complaints of the racially motivated harassment by unknown persons against Fellowship members and vandalism to its property specifically its church building. However, a § 1983 claim for abridgement of the Free Exercise Clause requires a plaintiff demonstrate, at the outset, that the alleged religion and related exercises sought to be protected from official impairment constitute a "religion" within the purview of the First Amendment's protection.

B. The Fellowship's Status as a Protected Religion

"Only beliefs rooted in religion are protected by the Free Exercise Clause, which, by its terms, gives special protection to the exercise of religion." Thomas v. Review Board of Indiana Employment Security Div., 450 U.S. 707, 713 (1981) (Burger, C.J.). In order to support a Free Exercise Clause violation claim, the alleged religion at issue need not be "theistic" in nature but must "address fundamental and ultimate questions having to do with deep and imponderable matters, comprehensive in nature," including a "belief-system as opposed to an isolated teaching," "recognized by the presence of certain formal and external signs." Africa v. Pennsylvania, 662 F.2d 1025, 1037 (3d Cir. 1981) (finding MOVE as a "revolutionary" organization opposed to "all that is wrong," and not a religion entitled to First Amendment protection and citing Malnak v. Yogi, 592 F.2d 197, 207-10 (3d Cir. 1970) (Adams, J., concurring) (Science of Creative Intelligence Transcendental Meditation ("SCI/TM") found to be a religion under Establishment Clause)). See also Torcaso v. Watkins, 367 U.S. 488, 495 n. 11 (1961) (noting Buddism, Taoism, Ethical Culture and Secular Humanism as among recognized non-theistic religions entitled to First Amendment protection). In order to obtain Free Exercise Clause protection, a belief is religious in nature if based on "an individual's ultimate concern . . . as his 'religion.' A concern is 'ultimate' when it is more than 'intellectual.' A concern is more than intellectual when a believer would categorically 'disregard elementary self-interest in preference to transgressing its tenets.'" Int'l Soc. of Krishna Consciousness, Inc. v. Barber, 650 F.2d 430, 439 (2d Cir. 1981) (finding that as an unorthodox offshoot of the Vaishnava Tradition of Bhakti Hinduism, the International Society of Krishna Consciousness, was a religion within the protection of the First Amendment). To receive First Amendment protection, such a religious system of belief must also be sincerely held even if such beliefs are unacceptable, illogical, or incomprehensible to others. Church of the Lukumi Babalu Aye, Inc., supra, 508 U.S. at 531 (quoting Thomas, supra, 450 U.S. at 714); Africa, supra, 662 F.2d at 1032 (citing United States v. Seeger, 380 U.S. 163, 185 (1965)). See also Washington Ethical Society v. District of Columbia, 249 F.2d 127, 129 (D.C. Cir. 1957) (finding practice of Ethical Culture Movement to constitute a religion sufficient to support local property tax exemption for plaintiff's building under D.C. code); Fellowship of Humanity v. County of Alameda, 315 P.2d 394 (Cal. Dist. Ct. of App., First Distr. 1957) (holding Fellowship of Humanity entitled to tax exemption despite fact that Fellowship's "humanistic doctrine" did not require belief in God).

While, the truth or falsity of the alleged religion at issue is not a proper matter for adjudication by the courts, United States v. Ballard, 322 U.S. 78, 87 (1944), nevertheless, courts must answer these "delicate question[s]" to avoid "allowing every person to make his own standards on matters of conduct in which society as a whole has important interests." Wisconsin v. Yoder, 406 U.S. 205, 215-16 (1972). In Yoder, supra, the Supreme Court found that the Amish "rejection of contemporary secular values" rested on religion rather than a Thoreau-like philosophy. Id. at 216. Such a personal and philosophic basis for the asserted practice at issue in Yoder, i.e., refusal to enroll children in state approved formal education programs after the eighth grade, would have been an insufficient basis for a refusal to comply based on the Free Exercise Clause. Id. In support of its finding that Amish beliefs at issue were religious in nature, for First Amendment purposes, however, the Court noted that the Amish rejection of worldly values was founded upon a religious faith in and reliance upon "their literal interpretation of the Biblical injunction from the Epistle of Paul to the Romans, 'be not conformed to this world.'" Id.

To avoid summary judgment on a § 1983 claim based on the Free Exercise Clause, the essential characteristics qualifying the asserted religion as one entitled to the Clause's protection must appear in the record based on standard reference works, an examination of the purported religion's books of worship, beliefs, practices, and teachings, or expert testimony. See Church of the Lukumi Babalu Aye, Inc., supra, 508 U.S. at 524-25 (finding articles of Santeria faith as including the "nurturing of a personal relationship with rishas, or spirits, to be religious in nature sufficient to receive First Amendment protection based on references to the Encyclopedia of Religion and the Encyclopedia of American Religion); Malnak, supra, 592 F.2d at 199 (relying on trial examination and discussion of SCI/TM "textbook" and "expert testimony"). The determination of whether the purported religion qualifies for First Amendment protection is a question for the court. Africa, supra, 662 F.2d at 1037 (court found MOVE principles and beliefs failed to meet criteria for First Amendment protection); Malnak, supra, 592 F.2d at 199 (finding SCI/TM to be a religion for purposes of Establishment Clause based on evidence including, inter alia, expert testimony). As the Second Circuit has recently noted "'[a] court's task is to decide whether the [religious] beliefs avowed are (1) sincerely held, and (2) religious in nature, in the claimant's scheme of things.'" McEachin v. McGinnis, 357 F.3d 197, 201 (2d Cir. 2004) (quoting DeHart v. Horn, 227 F.3d 47, 51 (3d Cir. 2000) ( en banc) (underlining added). Here, the record contains insufficient evidence to support a finding that Plaintiffs' beliefs are religious in nature, a prerequisite to any conclusion that a trial is required on whether Defendants' actions, as alleged by Plaintiffs, interfered with any religious beliefs held by Plaintiffs and protected by the First Amendment.

As noted, while Defendants did not specifically deny Plaintiffs' allegation, Complaint ¶ 7, that the Fellowship is a non-profit religious corporation organized under the New York Religious Corporations Law, Answer ¶ 7, even assuming such fact⁴⁰ does not satisfy Plaintiffs' burden for the purpose of avoiding summary judgment on Plaintiffs' Free Exercise claim of establishing that the Fellowship espouses or practices a "religion" entitled to First Amendment protection. See McEachin, supra, 357 F.3d at 51 (court to determine if professed beliefs are sufficiently religious in nature to warrant First Amendment Protection); Int'l Soc. for Krishna Consciousness, Inc., supra, 650 F.2d at 433 ("[I]n determining whether a governmental enactment unreasonably interferes with the free exercise of religion, a threshold inquiry into the 'religious' aspect of particular beliefs and practices cannot be avoided."). See also Africa, supra, 662 F.2d at 1031 (affirming finding by district court that plaintiff had "failed to establish MOVE is 'a religion within the purview and definition of the first amendment.'").⁴¹

40 The Fellowship's articles of incorporation are not included in the record.

41 The District Court found MOVE "a quasi-back-to-nature social movement of limited proportion and with an admittedly revolutionary design." Africa, supra, 662 F.2d at 1029.

Rule 56 provides that summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c) (italics added). The Supreme Court has interpreted the plain language of Rule 56(c) as "mandat[ing] the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, supra, 477 U.S. at 322 (italics added). The Court further held that "a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is 'entitled to a judgment as a matter of law' because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Id. at 323.

In this case, Defendant neither admitted nor denied Plaintiffs' allegation in the Complaint that the Fellowship is a religion. Answer ¶ 7. Rather, Defendant states that it lacks the information necessary to either admit or deny such allegation. Id. Such pleading by a defendant is considered as the equivalent of a denial sufficient to retain the burden of proof upon plaintiff. Fed.R.Civ.P. 8(b) ("If a party is without knowledge or information sufficient to form a belief as to the truth of an averment, the party shall so state and this has the effect of a denial."). As the burden is not on Defendant to prove the lack of a material element of the Fellowship's claim, Defendant was not required to produce evidence demonstrating that the Fellowship is not a religion within the First Amendment's protection. Rather, Defendant was entitled to rest on the pleadings, including the Answer, in which Defendant asserts it lacks sufficient information to either admit or deny that the Fellowship is, in fact, a protected religion. Thus, in response to Defendants' summary judgment motion, Plaintiff retained the burden of establishing a triable issue that the Fellowship's beliefs and associated practices are a religion within the ambit of the Free Exercise Clause's protection. That Plaintiffs received a federal tax exemption based, in part, on their asserted status as a New York religious corporation, and that the Fellowship properties were held to be entitled to a local real property tax exemption under New York tax laws, does not foreclose judicial inquiry in this action as to whether the Fellowship's religious beliefs qualify for First Amendment protection.⁴²

42 Defendants assert, without authority, that Plaintiffs' free speech and free association claims are subject to collateral estoppel as a result of Plaintiffs' denial of a tax exemption in the state court review proceeding. Defendants' Memorandum at 17 n. 17; Defendants' Exhibit HH. However, as there is no showing that such claims were actually litigated in the state court tax exemption litigation, collateral estoppel does not attach under New York law and thus does not bar Plaintiffs' federal constitutional claims in this case. See Leather, supra, 180 F.3d at 424-25 ( res judicata inapplicable to § 1983 claims as failure to raise selective prosecution defense in criminal trial does not prevent subsequent § 1983 equal protection claim).

Under New York Law,⁴³ neither taxing authorities nor courts may review the legitimacy of asserted beliefs of religious organizations as being nonreligious in character in rejecting a request for a real property tax exemption by such an organization. Holy Spirit Association for the Unification of World Christianity v. Tax Commission of City of New York, 435 N.E. 2d 662, 667 (N.Y. 1982). Thus, while New York law may authorize granting a property tax exemption based on an organization's good faith assertion that its beliefs and practices, as annunciated in its articles of incorporation, constitute its religious faith, a claimed abridgement of the Free Exercise Clause sufficient to support a § 1983 claim requires a federal court to apply greater scrutiny in determining whether a § 1983 plaintiff's claimed religious beliefs qualify for First Amendment purposes. See Church of the Lukumi Babalu Aye, Inc., supra, 508 U.S. at 531 (finding Santeria faith to be a protected religion for First Amendment purposes by detailed consideration of evidence, submitted by plaintiff, church's tenets and religious practices and services); McEachin, supra, 357 F.3d at 201; Africa, supra, 662 F.2d at 1029 (finding that plaintiff's MOVE organization was not a religion protected by Free Exercise Clause of First Amendment because it did not address fundamental and ultimate questions in human life and death, was not comprehensive in nature, and had none of the characteristics of a traditional religion); Malnak, supra, 592 F.2d 197 (absence of belief in a theistic god did not prevent SCI/TM system of beliefs from constituting a religion for purposes of finding a violation of the First Amendment Establishment Clause).

43 Under New York law, real property owned exclusively by a religious corporation and used exclusively for such religious purposes is exempt from local real property taxes. N.Y. Real Prop. Tax Law § 420-a[1] (a) (McKinney 2000). As relevant, tax exemptions are granted by the town assessor upon written application or following the assessor's inspection of the property and certification of eligibility for an exemption. Id. § 420-1a[11]. Judicial review of a denial of the request for exemption is available pursuant to Article 7 of the New York Real Property Tax Law and Article 78 of the New York Civil Practice Law and Rules. Id.

Here, although Plaintiffs assert that the Fellowship's mission is to "reach out and minister to the inner city of Buffalo," a large, racially diverse, municipality adjacent to the Town's western boundary, other than supplying food and clothing to the poor and Andzel's stated "call" by God to preach the gospel of Jesus Christ through word and deed, Andzel Affidavit ¶ 3, no further description of the Fellowship's religious beliefs and practices, or its religious services has been provided by Plaintiffs in response to Defendants' motion. Further, no averment or testimony by Andzel states that he in fact preaches New Testament teachings as an essential component of the Fellowship's regular religious services. Plaintiffs fail to explain how such worthy social objectives are indicative of beliefs regarding transcendent matters of human conduct and involving "ultimate questions having to do with deep and imponderable matters," "comprehensive in nature," and "recognized by the presence of certain formal and external signs." Africa, supra, 662 F.2d at 1032. Such "imponderable matters" might, for example, deal with questions of the relationship of a person to a Creator, the existence of a soul and its potential for eternal life, the concept of sin, and God's command to love one another as one's self.

Because Plaintiffs asserted they adhere to "non-traditional Christianity," Plaintiffs' Memorandum at 6, and practice a "non-traditional style of religious worship," id. at 18, it was incumbent upon Plaintiffs to provide reasonable elaboration on the salient characteristics of such "non-traditional Christianity," and "non-traditional styles of worship" to enable the court to determine whether such non-traditional beliefs and forms of worship retain sufficient elements of judicially recognized religions and religious services to support Plaintiffs' First Amendment claim. Indeed, courts have pointed to the extent to which new beliefs proffered for Free Exercise Clause protection are similar to "traditional beliefs," as reason to find the beliefs at issue to constitute a religion within the reach of the First Amendment's protection. Africa, supra, 662 F.2d at 1032 n. 12 (quoting Malnak, supra, 592 F.2d at 207).

While Plaintiffs have stated that one of the primary tenets of the religion practiced by the Fellowship's members is to minister to the poor of the inner city, Andzel Affidavit ¶¶ 2-4, there is a paucity of evidence in the record demonstrating that the Fellowship's purposes and beliefs satisfy the requisite criteria for an asserted religion to obtain protection under the Free Exercise Clause. For example, Plaintiffs conclusorily allege Defendants' interfered with the Fellowship's "worship services." Complaint ¶ 23. However, the record contains no information from which it may be determined that the particular "services" Defendants allegedly interfered with were religious in nature under relevant First Amendment standards. See Church of the Lukumi Babalu Aye, Inc., supra, 508 U.S. at 524-25; McEachin, supra, 357 F.3d at 201; Africa, supra, 662 F.2d at 1035; Malnak, supra, 592 F.2d at 198 n. 2.

The Fellowship claims to have several "ministries" through which its members may direct their religions activities, such as clothing, toy, and food distribution, home, hospital and prison visitations, and "community services." Raum Declaration ¶ 7. How these activities, commendable though they may be, constitute religious exercises is not explained. Such good works are also carried out by many nonprofit, secular organizations in practically every American community. A felt obligation to engage in humanitarian good works by itself is an insufficient basis upon which to obtain protection as a religious belief under the First Amendment. Malnak, supra, 592 F.2d at 211. "An undefined belief in humanitarianism, or good intentions, is still far removed from a comprehensive belief system laying a claim to ultimate truth and supported by a formal group with religious trappings." Id.

Attorney Raum also asserted that the Fellowship practices "non-traditional Christianity." Plaintiffs' Memorandum at 6. Not only does Raum fail to explain or describe the religious aspects of the Fellowship's "non-traditional Christian practices," such statement by an attorney also is not made on personal knowledge and therefore, is insufficient evidence to defeat summary judgment on whether the Fellowship practices a religion for First Amendment purposes. Randell v. United States, 64 F.3d 101, 109 (2d Cir. 1995); Beyah v. Coughlin, 789 F.2d 986, 989-90 (2d Cir. 1986). While the court is familiar with the basic tenets of the Christian faith, it is unfamiliar with any so-called "non-traditional" form of the Christian religion. Moreover, Plaintiffs have submitted no affidavits, testimony, documentation, or expert opinion describing to which traditional attributes of Christianity Fellowship members adhere, nor do Plaintiffs indicate whether their members consider the Fellowship to be their exclusive religion preference or whether any members merely participate in Fellowship's services as a complement to their respective primary religious affiliations with any established churches. Additionally, although Raum and Andzel refer to Andzel's "call" to preach the New Testament, Raum Declaration ¶ 6; Andzel Affidavit ¶ 3, nowhere is it stated that members of the Fellowship are required to share such a calling or, for that matter, practice and believe that the New Testament Gospels represent divinely inspired teachings necessary for eternal salvation, a typical attribute of traditional Christian belief. The only "sincere religious belief," Raum Declaration ¶ 6, enunciated as central to the Fellowship's religious views is "to reach out to those in need." Andzel Affidavit ¶ 3. However, as noted, Discussion, supra, at 72, such humanitarian intention, standing alone, is not an acknowledged attribute indicative of protected religious beliefs. Additionally, Plaintiffs' asserted mission of assisting the inner city poor fails to address any of the judicially accepted criteria for qualification as a protected form of religious exercise. Specifically, such assistance, if actually given, while laudatory, does not address fundamental and ultimate questions having to do with deep and imponderable matters, comprehensive in nature, nor "constitute a belief system as opposed to an isolated teaching" "recognized by . . . formal and external signs." Africa, supra, 662 F.2d at 1032. Nor do Plaintiffs attempt to demonstrate how such a "ministry" is a tenet of their religious belief so strongly held that it will override a Fellowship member's normal sense of self-interest. Int'l Soc. of Krishna Consciousness, Inc., supra, 650 F.2d at 439. Plaintiffs also state the Fellowship is affiliated with an organization referred to as Living Word Ministries, Andzel Affidavit ¶ 1, but no further explanation of the religious character of this organization or the religious significance of the affiliation is provided. Finally, while a racially and ethnically diverse congregation for a church may well be a desirable objective, Plaintiffs fail to explain how such social diversity constitutes one of the Fellowship's principles of religious significance, i.e., "ultimate concern," for Plaintiffs' religious beliefs.

Accordingly, the court finds Plaintiffs have failed to establish, sufficient to avoid summary judgment, that the Fellowship holds and practices a religion entitled for First Amendment protection, a prerequisite to Plaintiffs' Free Exercise claim, and on that basis Defendants' motion for summary judgment as to Plaintiffs' First Cause of Action should be GRANTED. Should the District Judge disagree with this conclusion and find that Plaintiffs' religion is one within the scope of the Free Exercise Clause, or that an issue of fact exists on this question sufficient to require trial, the court alternately considers whether summary judgment should be granted based on Plaintiffs' failure to show issues of fact going to the existence of religious or racial animosity by Defendants towards Plaintiffs and whether such animosity motivated Defendants to act against Plaintiffs and caused any deprivation of Plaintiffs' rights under the Free Exercise Clause. C. Plaintiffs' Free Exercise Claims Against the Board, Conway, Marten and Ulatowski.

Plaintiffs claim in their First Cause of Action alleging abridgement of their Free Exercise Clause rights that Defendants' actions prevented Plaintiffs' "intended religious use of their property [at 3125 Genesee Street]." Complaint ¶ 32. Plaintiffs also assert Defendants engaged in a "policy and practice of discrimination" against Plaintiffs based on Plaintiffs' religious beliefs and practices. Id. However, as discussed, Discussion, supra, at 59-61, Plaintiffs do not contend that the Town's Tree Preservation Ordinance, Building Code, Zoning Ordinance, and the state's real property tax exemption requirements are not neutral and generally applicable laws with respect to Plaintiffs' religious beliefs and practices. Rather, the Complaint alleges that "through systematic harassment, intimidation and discrimination" in their manner of enforcing such otherwise neutral laws, Defendants burdened Plaintiffs' right to the free exercise of their religious beliefs. Complaint ¶ 32. Therefore, the fact of Defendants' enforcement of the Town's general and religiously neutral ordinances against Plaintiffs cannot, without more, provide a basis for Plaintiffs' First Amendment Free Exercise claims. Smith, supra, 494 U.S. at 878-79; St. Bartholomew's Church, supra, 914 F.2d at 354-55; Congregation Beth Yitzchok, supra, 593 F.Supp. at 662-65. Even if Plaintiffs' Free Exercise claim is construed to arise from Defendants' harassment of Plaintiffs through discriminatory enforcement of the Town's ordinances as applied to the Fellowship's use of its property and Conway's and the Board's unsuccessful attempts to deny the Fellowship a tax exemption for 1998 and 1999 based on Defendants' subjective hostility toward Plaintiffs' religion and the race of the Fellowship's congregants, in the absence of any showing that Plaintiffs' religious practices or other interests, to the extent protected by the Free Exercise Clause, such as Plaintiffs' ability to hold and practice their religious beliefs espoused by the Fellowship's non-traditional form of Christianity, attendance and participation at Fellowship religious services, preservation of Fellowship resources and financial support, were adversely affected by Defendants' conduct, Discussion, supra, at 30-43, Plaintiffs cannot make out a Free Exercise violation actionable pursuant to § 1983. See St. Bartholomew's Church, supra, 914 F.2d at 350, 355; Congregation Beth Yitzchok, supra, 593 F.Supp. at 658.

Further, assuming arguendo, that Defendants acted against Plaintiffs in derogation of Plaintiffs' right to free religious exercise, unless such discriminatory actions "burden[ed] a central tenet or important practice of [Plaintiffs'] religion," Plaintiffs' First Cause of Action fails. Levitan v. Ashcroft, 281 F.3d 1313, 1320 (D.C. Cir. 2002) (cited with approval in McEachin, supra, 357 F.3d at 202-03). Here, Plaintiffs make no effort to demonstrate that using the property for purposes such as children's recreation, outdoor Bible classes and prayer meetings, and youth programs involve central tenets or important religious practices of Plaintiffs' religious beliefs as practiced by the Fellowship. Accordingly, if Defendants' actions did interfere with the scheduled completion of the improvements to the site as contemplated by Plaintiffs, such conduct would not constitute an actionable violation of Plaintiffs' rights under the Free Exercise Clause as to Plaintiffs' use of, or inability to use, the property. The same is true as to Plaintiffs' claims arising from Papero's and Mueller's actions; Plaintiffs fail to explain how any disruption of the Fellowship ministry lines by Papero during the visits at issue, or the Bishop lecture by Mueller in the course of serving the summons on Grant, constituted interference with anything central or of importance to their religious practice or beliefs.

Andzel's recollection of Papero's first visit to the Fellowship was that Andzel heard Papero speaking in a loud voice as Andzel walked toward his office at the conclusion of the first part of the Sunday service while the congregation was engaged in a "fellowship" gathering in the foyer to discuss Fellowship activities. Andzel Deposition at 55-56. On Papero's second visit, Andzel recalled Papero was again standing in the foyer speaking in a loud voice causing ushers to close the doors between the foyer and the sanctuary or auditorium so as to avoid disturbing Pastor Andzel's "ministering the word from the podium." Andzel Deposition at 62-63. Thus, even crediting Andzel's and Grant's version of Papero's visits, Papero's stated purposes on both occasions, as communicated to and understood by Grant, was to assist Marten in enforcing the Tree Preservation Ordinance. Moreover, as Papero never entered the sanctuary, no disruption of the Fellowship's Sunday services resulted from either of Papero's visits. Although Plaintiffs claim Papero spoke loudly enough to require the ushers to close the doors between the foyer and the sanctuary, Andzel stated he completed his portion of the service on that occasion, albeit somewhat sooner than he had originally intended. Andzel Deposition at 64. Even if it is assumed that the second encounter between Grant and Papero involved speaking in loud voices, as Grant admitted that he was speaking loudly, and in anger, at Papero, it could not be found that Papero's conduct was the sole cause of any limitation on Andzel's sermon because of the loud voices emanating from the foyer. Grant Deposition at 58 ("At this point our voices are getting loud because I'm angry.") (underlining added). Accordingly, even if Papero and Mueller did in some degree impinge on those activities, such impingements are not actionable.

Moreover, in the case at bar, Plaintiffs have failed to submit any admissible evidence in opposition to Defendants' summary judgment motion showing that any of Defendants' actions, including the alleged discriminatory enforcement of the Town's Building Code, Zoning Ordinances, and Tree Preservation Ordinance against them, as well as the denials of real property tax exemptions, operated to coerce Plaintiffs to modify their religious beliefs or programs, or directly interfered with their religious practices. See Board of Education v. Allen, supra, 329 U.S. at 249; Abington School District v. Schempp, supra, 374 U.S. at 202. While Plaintiffs claim Defendants' actions⁴⁴ were discriminatory in nature, Plaintiffs also failed to offer any admissible evidence, as is their burden to defeat summary judgment, Fed.R.Civ.P. 56(e); Lujan, supra, 504 U.S. at 561, showing that Defendants' alleged discriminatory motivations were predicated upon or targeted at Plaintiffs' religious beliefs. Indeed, nowhere in Plaintiffs' examinations before trial of Defendants Conway, Marten and Ulatowski, and of nonparties Papero and Town Councilman Thomas M. Johnson, Jr., is there any indication that Defendants or Johnson, in his capacity as a Town Board member (or any other relevant nonparty, e.g., Papero or Mueller), had any knowledge of the nature of Plaintiffs' religious beliefs including Andzel's stated calling to preach the New Testament gospels, and the Fellowship's mission to serve those in need particularly within the "inner-city." Assuming, arguendo, Defendants were aware, as Plaintiffs imply, of the Fellowship's mixed racial membership, no evidence offered by Plaintiffs tends to show that having an interracial membership for the Fellowship was one of Plaintiffs' fundamental religious tenets and that the individual Defendants were aware of such fact when any of the Defendants' alleged discriminatory actions were taken against Plaintiffs.⁴⁵

44 Defendants do not deny the basic facts of Plaintiffs' allegations, i.e., Defendants' efforts to enforce the Town ordinances, including the Tree Preservation Ordinance, as to Plaintiffs' 3125 Genesee Street property improvement project, the stop work orders issued by Ulatowski, Papero's inspection of trees on Plaintiffs' property, Mueller's service of the criminal summons on Grant, and the Town's denial of tax exemptions for the 3125 Genesee Street parcel. Defendants' Statement of Undisputed Facts ¶¶ 19, 24-28, 40-41.

45 As discussed, Discussion, supra, at 71-74, Plaintiffs also fail to demonstrate in opposition to the instant motion, that the content of the "non-traditional Christianity" assertedly practiced by Plaintiffs, Plaintiffs' Memorandum at 6, is indicative of a religion entitled to First Amendment protection.

To oppose summary judgment, if Plaintiffs' religion is within the First Amendment's reach, Plaintiffs rely upon statements Plaintiffs assert Conway made in July 1995 to Mrs. Andzel when the Fellowship first requested a tax exemption on the 3125 Genesee Street property, Andzel Deposition at 32 ("What do you people want from us," Andzel Affidavit ¶ 6), and statements made by Conway to Andzel when Andzel visited Conway to learn what Conway meant by his reference to "you people" which Conway also allegedly made to Mrs. Andzel. Id. ¶¶ 6-7. According to Andzel, Conway stated to Andzel, "[W]e did not know who you are," "we don't want you here," "you've been denied, and I'm going to do everything I can do to make sure that you never have an exemption on the [3125 Genesee Street] property." Andzel Affidavit ¶ 7; Plaintiffs' Memorandum at 6. Plaintiffs argue that such statements, if believed, raise triable issues of Conway's discriminatory motives in denying Plaintiffs the tax exemption. Upon close examination, the court finds these attributions are insufficient to require trial on Plaintiffs' First Cause of Action.

First, Conway denied that he ever made such comments to either of the Andzels. Conway Deposition at 64-65. Indeed, a careful reading of Andzel's deposition, taken May 2, 2000, twenty-two months prior to making his affidavit, reveals that Andzel could not state with certainty that Conway actually said to Mrs. Andzel that the Fellowship was "indesirable [ sic]." Andzel Deposition at 33. In response to the question whether Conway in fact used the word "undesirable," id. at 31, in referring to the Fellowship's tax exemption request, Andzel responded "I don't know . . . I wasn't there." Andzel Deposition at 34. No affidavit or deposition testimony of Mrs. Andzel has been submitted by Plaintiffs.

Plaintiffs' reliance, Plaintiffs' Memorandum at 6, on a statement by Ulatowski at a meeting with Grant on August 11, 1997, that Ulatowski was "a church harasser," Grant Deposition at 17, 20-22, is similarly insufficient to avoid summary judgment. At the meeting, Ulatowski informed Grant that a site plan for the 3125 Genesee Street property was required under a recent amendment to the Town's Zoning Ordinance, id. at 24, based on the Town's concerns that the Fellowship was changing the grade and elevations of the ground at the site. Id. at 26. According to Grant, in response to Grant's inquiry, Ulatowski denied that compliance with the new requirements was motivated by any ill feelings on Ulatowski's part toward the Fellowship or its members. Id. at 29. Rather, as Grant recalled, Ulatowski responded to Grant's suggestion that Ulatowski was biased against the Fellowship project by telling Grant that he, Ulatowski, was referred to by his co-workers as the "church harasser." Id. After the meeting, the Fellowship nevertheless agreed to submit another plan for the improvement project at the site, which was later approved by the Town Planning Board at its September 11, 1997 meeting. Id. at 27; 35. Based on that approval, the Fellowship was subsequently authorized by Marten, in a letter to Brox dated October 10, 1997, to proceed with the improvement project at the site but required that prior notice of any scheduled tree removals be given to the Building Department to provide an opportunity for official oversight under the Tree Preservation Ordinance. Defendants' Exhibits O S.

Assuming Conway and Ulatowski did make the statements Plaintiffs found offensive and indicative of religious bias, the statements are insufficient to support a finding by a trier of fact that Defendants had knowledge of Plaintiffs' religious beliefs, or held any animus toward such beliefs which influenced their decisionmaking as to Plaintiffs. As discussed, Discussion, supra at 64-74, Plaintiffs have failed to show they practice a religion subject to First Amendment protection, a conclusion that negates, as a matter of law, finding that Defendants acted against Plaintiffs based on Plaintiffs' religion as Plaintiffs alleged in their First Cause of Action. Further, nothing in the record suggests that the enforcement of the Town's ordinances against Plaintiffs by Marten and Ulatowski was purposively coordinated with Conway's and the Board's decisions to deny the Fellowship the requested property tax exemptions. Conway testified that he spoke to Ulatowski as to the Plaintiffs' intended uses for the property in connection with Conway's consideration of Plaintiffs' tax exemption requests as aid in determining whether Plaintiffs used the property for religious purposes, Conway Deposition at 62-63; however, that Ulatowski relayed such information to Conway raises no reasonable suspicion of religious or racial animus toward Plaintiffs by either Conway or Ulatowski. Plaintiffs point to nothing in Conway's lengthy deposition to the contrary. Nor do Plaintiffs' depositions of Conway, Marten, Ulatowski or Papero reveal any communication from Plaintiffs, prior to any of Defendants' actions, as complained of by Plaintiffs, informing Defendants of the nature of Plaintiffs' religious beliefs or practices. Grant's letters dated September 17, 1998 to Johnson and Ulatowski, Plaintiffs' Exhibits 18 and 19, inviting them to a prayer meeting on September 30, 1998 refers to an instruction to Fellowship members "as Christians to pray for those in authority. . . ." Although, assuming they were received by Johnson and Ulatowski, the invitations precede the Town's decision to prosecute Grant for the Tree Preservation Ordinance violations, given Ulatowski's undisputed status as a supportive member of his own local Catholic church, it would be unreasonable to believe his decision to launch the prosecution was influenced by the discovery that Grant was a self-described Christian.⁴⁶ Marten Deposition at 26; Ulatowski Deposition at 55. As to Johnson, there is no evidence that Johnson took an adverse action against Plaintiffs following receipt of the letter. According to the record, no similar communication was sent to Marten.

46 As the letters are not submitted under oath, they represent inadmissible hears ay in any event.

Grant did testify to acts of vandalism, racial graffiti and epithets by unknown persons and from local business establishments ("don't let you [ sic] jungle bunny kids come into our store anymore"), Grant Deposition at 101, and Plaintiffs' dissatisfaction with the lack of aggressive investigation by Town police of Plaintiffs' complaint, id. at 102, concerning these and other forms of harassment directed toward the Fellowship. However, reprehensible as such racially tinged conduct are, Plaintiffs offer no evidence either in their own deposition testimony, that of any named Defendant, or nonparties Councilman Johnson, Papero, Mueller, or any other Town official,⁴⁷ suggesting any Defendants were aware of, instigated, or condoned such misconduct. For example, while Grant recalled that Town police interrupted a Fellowship sponsored outdoor summer youth basketball program in which about 75 percent of the participants were black, he recalled that the police informed the supervising Fellowship members then present that the police were responding to neighborhood resident complaints about excessive noise. Grant Deposition at 104-05. Plaintiffs offer no evidence to contradict the officers' statements, nor do Plaintiffs submit anything to suggest that the police officers' response to the noise complaint was racially motivated.

47 In the Complaint, Plaintiffs alleged that other Town officials and employees were "believed" to have "participated in this campaign of harassment and discrimination against the Fellowship." Complaint ¶ 22. However, despite over two years of discovery, no such persons have been either named by Plaintiffs as defendants or even identified. Indeed, when Pastor Andzel was asked, at his deposition, conducted eleven months after the Complaint was filed, if he could identify any town officials or employees who may have communicated to Andzel that they found the Fellowship's religious practices to be "undesirable" Andzel responded "I don't know if I could say yes . . . or how to answer that question." Andzel Deposition at 41.

Andzel also averred that on September 15, 2001, following the arrival at the site by Town police based on a complaint that trees were being removed, a neighbor, Mrs. Cartwright, who resided near the Fellowship, accused Andzel of being a ". . . religious cult leader," that the Fellowship was "bringing the inner city problems into our town," and that the Fellowship "should put up a fence . . . and cage all you monkeys." Andzel Affidavit ¶¶ 50-52. Andzel testified that Councilman Johnson sent a letter to the Fellowship's neighbors suggesting they conduct a surveillance of the Fellowship's activities. Andzel Deposition ¶ 50. However, Andzel was unable to produce a copy of the letter⁴⁸ and admitted that the letter contained no reference to racial minorities. Id. at 51-52. The only document in the record authored by Johnson is a memorandum referring a complaint from Mrs. Cartwright about possible Town ordinance violations occurring at 3125 Genesee Street to Marten for followup inspection. Plaintiffs' Exhibit 16. Nothing in the memorandum, dated September 3, 1998, refers to the racial makeup of the Fellowship's religious beliefs, its members, or stated "missions."

48 A copy of the described letter was not included in the record by either party. Plaintiffs submitted a copy of a memorandum to Johnson from Ulatowski dated September 24, 1998, Plaintiffs' Exhibit 20, stating the results of Ulatowski's investigation, at Johnson's request, of an anonymous complaint to Johnson regarding the alleged "disturbances" of the site's 50 foot buffer. A notation at the foot of the memorandum indicates Johnson sent copies to local residents for their information.

None of these instances, individually or taken as a whole, provide admissible evidence, direct or circumstantial, from which to reasonably infer, contrary to Plaintiffs' perceptions that Defendants inspired Mrs. Cartwright's alleged statements to Andzel or directed such malicious misconduct or investigative failures based on any official animus toward Plaintiffs' religious beliefs that Plaintiffs are obliged to minister to minorities and the less economically fortunate members of the community.⁴⁹ See Cazares, supra, 638 F.2d at 1282-83 (defendant mayor's public hostile statement opposing the plaintiff Church of Scientology's acquisition of property for religious purposes held insufficient to require trial on plaintiff's First Amendment claims). Contrasting to the instant case, in Cazares, the defendant mayor had made public statements opposing the plaintiff church's plan to establish a place of worship within the city and wrote letters complaining about potential violations of law by plaintiff. Id. at 1275, 1282. On the other hand, like the instant case, in Cazares no admissible evidence established a causative link between the defendant mayor's declared opposition to the church and any actual interference with plaintiff's religious exercises or that of its congregants based on a "hostile public climate" against the church. See id. at 1282. Nor, as the court in Cazares found, did the mayor's outspoken opposition to the church justify denying defendant's request for summary judgment based on the absence of admissible evidence from plaintiff that such defendant's opposition actually impeded the exercise of plaintiffs' religious beliefs. Id. As discussed, Discussion, supra, at 76-84, Plaintiffs, in opposition to summary judgment, make no effort to demonstrate that any of their important religious tenets, an issue upon which Plaintiffs carry the burden of proof, were in fact restricted by Defendants' actions. Moreover, the statements attributed to Mrs. Cartwright, even if accurately recounted by Andzel, nevertheless constitute inadmissible hearsay,⁵⁰ which is insufficient to defeat summary judgment, Fed.R.Civ.P. 56(e) (requiring admissible evidence to avoid summary judgment); no evidence was presented by Plaintiffs showing that such statements were prompted, known to, or condoned by Defendants or Councilman Johnson, or that they are somehow connected to Defendants' actions as described in the Complaint. Equally important, no admissible evidence supports an inference that the Town's enforcement decisions, as challenged by Plaintiffs, were responsive to any religious or racial prejudice toward the Fellowship and its members which may have been harbored by members of the local community. See Cazares, supra, 638 F.2d at 1282.

49 Grant did advise Councilman Johnson in a letter complaining about Johnson's alleged direction to local police to stop Fellowship members from cutting trees on Fellowship property that despite the hum iliation such directions had caused, the Fellowship intended to continue in its mission to "reach out" to "help" the community. However, the letter was dated January 5, 2002, several years after the discriminatory acts which form the factual basis for Plaintiffs' First Cause of Action. Further, the fact that Mrs. Cartwright allegedly made such statements in December 2001 negates any basis to infer that Defendants' actions, as alleged in the Complaint, i.e., based on events which occurred prior to December 2001, were taken in response to such expressions of racial and religious animus.

50 Fed.R.Civ.Evid. 801(c) (defining inadmissible hearsay as a "statement other than made by a declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted," except if an admission of a party. Id. 801(d)(2). Here, Mrs. Cartwright is not a party and thus the statement proffered by Plaintiffs cannot survive objection as an admission.

Assuming Conway's alleged statements to the Andzels — "what do you want from us," "we did not know who you are," and "we don't want you here" — were in fact made, in the absence of any indication Conway was then aware of the Fellowship's asserted religious beliefs or the racial makeup of its membership, carry no implication of religious or racial bias, either facially or in context, the statements are insufficient to require trial based on Conway's denial of the requested tax exemption for reasons other than those permitted under applicable state law, i.e., that Plaintiffs' property was not then used exclusively for religious purposes. The absence of any evidence by Plaintiffs that their religious beliefs and practices qualify for protection under the Free Exercise Clause or that, even if Plaintiffs' religious beliefs and practices are protected, Conway was aware of the nature of these religious beliefs and practices, including the Fellowship's interracial membership, is consistent with Conway's statement "we did not know who you are." Not once during Conway's deposition was Conway asked by Plaintiffs if he was aware of the nature of Plaintiffs' beliefs and the interracial character of its members. Further, the Conway statements relied upon by Plaintiffs were allegedly made in July 1995, in connection with Plaintiffs' application for a tax exemption, which was denied at that time, and the denial upheld by state court, three years before Plaintiffs reapplied for the same exemption in 1998. The record shows that, at that time, Conway and the Board rejected the requested exemptions based on their belief that the property remained a vacant and unused commercial parcel, carried on the Town's assessment roll as such based on its prior auto dealer ownership and use, and that Plaintiffs' insistence that the property was then being used exclusively for religious purposes was insufficiently documented. Plaintiffs' Exhibit 4 at 4; Plaintiffs' Exhibit 7 at 17-18. The Board's statements of its reasons for the denials raise no inference of discriminatory motives.⁵¹

51 Plaintiffs fail to explain an apparent inconsistency in their theory of liability based on the tax exemption denials, i.e., why it is plausible to find that the same public officials, in particular Conway, who, in 1992, granted Plaintiffs, without controversy, a tax exemption for the Fellowship meeting building located at 3325 Genesee Street and where Plaintiffs' religious practices were exercised and the Fellowship's minority members attended, would later decide, in 1998, to deny, for improper discriminatory motives, an exemption to an adjacent vacant parcel acquired by Plaintiffs in 1994 and appearing to Conway as having no current religious use. Significantly, Plaintiffs do not argue, and nothing in the record suggests, that the Fellowship did not continue to enjoy a real property tax exemption, without threat of withdrawal by the Town, on the Fellowship's church building and related facilities at 3325 Genesee Street. If Defendants did harbor the degree of religious and racial animosity against Plaintiffs as alleged in this case, it is difficult to understand why Defendants would direct their hostility to Plaintiffs' use of the vacant lot, and not to Plaintiffs' use of their church building where Plaintiffs claim their primary interracial religious services and programs are conducted.

Plaintiffs' First Cause of Action against Defendants Conway and the Board of Assessment, in Conway's individual and official capacity and the Board's official capacity as an agency of the Town, must be also dismissed as a matter of law because while both Defendants are named in the caption of the Complaint, no facts are pleaded in the body of the Complaint upon which, assuming their truth, liability against Conway or the Board for the alleged abridgement of Plaintiffs' First Amendment and Equal Protection rights could be found. Thus, § 1983 liability may not be imposed against Conway or the Board.⁵² Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 886 (2d Cir. 1987) (citing Black v. United States, 534 F.2d 524, 522-28 (2d Cir. 1976); Owens v. Coughlin, 561 F.Supp 426, 428 (S.D.N.Y. 1983)). "Having failed to allege, as they must, that these defendants were directly and personally responsible for the purported unlawful conduct, their complaint is 'fatally defective' on its face." Alfaro Motors, Inc., supra, 814 F.2d at 886 (quoting Black, supra). See Hendricks, supra, 1994 WL 23069 at *3 (dismissing civil rights action where complaint named defendants in caption but failed to "allege actionable individual behavior necessary to sustain a Bivens claim") (italics in original), aff'd, 40 F.3d 1236 (2d Cir. 1994) (Table). "A complaint that fails to make any specific factual allegations of 'direct and personal responsibility on the part of the any named defendants . . .' must be dismissed." Id. (quoting Lee v. Carlson, 645 F.Supp 1430, 436 (S.D.N.Y. 1986). The generalized allegation in the Complaint that Conway "personally participated in the process that led to the Plaintiffs injuries herein," Complaint ¶ 12, is insufficient to avoid summary judgment as to Conway. Celotext, supra, 477 U.S. at 324 (party with burden of proof may not rely on pleadings but must put forth admissible evidence to avoid summary judgment); Goenaga, supra, 51 F.3d at 18 (same). See Lujan, supra, 504 U.S. at 561; Alfaro, supra, 814 F.2d at 886. No similar allegation is asserted against the Board.⁵³

52 Whether another constitutional ground for § 1983 relief could be raised, for example, predicated on a discriminatory motive in denying a tax exemption, such as a violation of substantive due process, need not be addressed as Plaintiffs make no such alternative claim, nor are Plaintiffs proceeding pro se so as to require the court give the Complaint a broader reading to cover such a theory.

53 Here, Plaintiffs unequivocally assert Conway and the Board are sued in both their individual and official capacities. Complaint at 1. To the extent sued in their official capacities, Plaintiffs' claims are therefore against the Town whose potential for § 1983 liability to Plaintiffs is discussed infra, Discussion, infra, at 128-153.

Moreover, even construing the allegation liberally as required in federal civil practice, United States v. City of New York, 359 F.3d 83, 91 (2d Cir. 2004) ("Complaints alleging civil rights violations must be construed especially liberally") (citing George v. Daly, 243 F.3d 687, 691 (2d Cir. 2001)), the factual allegations in Plaintiffs' First, Second and Third Causes of Action alleging actions taken by Defendants in blocking the Fellowship's intended religious use of its property for religious purposes, (First Cause of Action), Defendants' alleged disruption of Fellowship services (Second Cause of Action), and Defendants' disparate enforcement of the Town's ordinances against the Fellowship and the selective prosecution of Grant for the violations of the Tree Preservation Ordinance based on Defendants' alleged discriminatory motives in response to the racial makeup of the Fellowship's members and its religious beliefs (Third Cause of Action), fairly read, provide no factual nexus to Conway or the Board. Indeed, none of the facts asserted in any of Plaintiffs' first three federal causes of action are connected directly or circumstantially to Conway's and the Board's decisions in denying Plaintiffs' requested property tax exemptions either in 1995 or, again, in 1998 and 1999. While Plaintiffs submitted affidavits and deposition testimony describing Plaintiffs' travails in attempting to obtain a tax exemption for the property acquired by Plaintiffs in 1994, Andzel Affidavit ¶¶ 2, 3-9, none of this information constitutes part of the Complaint so as to avoid summary judgment in favor of Conway and the Board. Alfaro, supra, 814 F.2d at 886; Hendrickson, supra, 1994 WL 23069 at *3.

In any event, nothing in either the body of the Complaint or the materials submitted by Plaintiffs in opposition to the instant motion explains how the tax exemption denials "block[ed]" Plaintiffs' use of the property, Complaint ¶ 32, "disrupt[ed]" Plaintiffs' religious services (Complaint ¶ 37), "enforc[ed] the [Town's] building code regulations" in a discriminatory manner, or could be equated with "treating Plaintiffs differently from other similarly situated individuals or groups." Complaint ¶ 41. While the discovery materials submitted by Plaintiffs accuse Conway and the Board of denying the tax exemptions for discriminatory reasons, such submissions cannot rehabilitate the Complaint's "fatal defect," Alfaro Motors, supra, 814 F.2d at 886, in failing to state facts supporting § 1983 liability as to the individual Defendants and the Board, and even these materials do not implicate Conway or the Board in the accused disruptions of Plaintiffs' religious exercises or the Town's alleged disparate enforcement efforts. Thus, not only is the Complaint an insufficient legal predicate upon which to impose § 1983 liability against Conway and the Board, but Plaintiffs also have failed to raise any material issue of fact that Conway and the Board violated Plaintiffs' rights or caused any injury to Plaintiffs' constitutional rights as pleaded in this case.

Even if the Complaint had incorporated facts establishing the basis for Plaintiffs' beliefs that Conway intentionally discriminated against them and that the Board ratified such biased decisions, Plaintiffs could not avoid summary judgment as to Conway and the Board because in order for § 1983 liability to attach the offending conduct must be shown to have caused actual injury to a plaintiff's constitutional rights. Colombo, supra, 310 F.3d at 116. As discussed, Discussion, supra, at 32-35, 78-89, Plaintiffs point to no admissible evidence in the record upon which a reasonable fact trier could infer that either Conway or the Board denied the requested exemptions for the purpose of discriminating against Plaintiffs based on their religious beliefs or the racial makeup of the Fellowship membership, that the denial of the exemptions in any way impeded Plaintiffs' ability to conduct religious exercises on Fellowship property, had any actual or chilling effect upon Plaintiffs' free religious exercise rights, reduced Plaintiffs' Fellowship membership, suppressed the extent of participation in Fellowship activities or its revenue, materially diluted Plaintiffs' ability to minister to Fellowship members, or otherwise significantly hindered the Fellowship's claimed religious mission to the surrounding community, particularly the so-called "inner city."⁵⁴ As such, Plaintiffs' opposition papers raise no material issues as to the existence of any of Plaintiffs' alleged constitutional injuries nor show Conway or the Board may have caused Plaintiffs' actual harm even if the evidence asserted in Plaintiffs' opposition to Defendants' motion against Conway and the Board had been properly pleaded, as was Plaintiffs' obligation, in the Complaint. Accordingly, summary judgment should be GRANTED as to Defendants Conway and the Board of Assessment Review on Plaintiffs' First Cause of Action.

54 How relocating the Fellowship to a predominantly middle class, white suburb, of distinct ethnic identity, nine miles from the center of the City of Buffalo, aided the Fellowship in carrying out its "ministry" to those in need in the "inner city" is not explained in the record.

Plaintiffs also point to Ulatowski's statement at the August 11, 1997 meeting, with Andzel, Grant and other Fellowship members, that he was a "church harasser," as evidence that Defendants acted against Plaintiffs because of religious bias toward the Fellowship. Plaintiffs' Memorandum at 8-9. Plaintiffs heavy reliance on Ulatowski's "church harasser" workplace nickname is unavailing to avoid summary judgment. First, contrary to Plaintiffs' assertion, Plaintiffs' Memorandum at 16, Ulatowski's reference to himself as a "church harasser" is not an admission of bias sufficient to defeat summary judgment. As related by Grant, Ulatowski's comment was made during a meeting on August 11, 1997, conducted to discuss the Town's insistence that the Fellowship submit an application to the Town's Planning Board on September 11, 1997, for a permit covering the planned improvements to the property at 3125 Genesee Street, and the reason for Ulatowski's stop work orders on the project. Andzel Deposition at 45; Grant Deposition at 20, 32.⁵⁵ Moreover, the record shows that the Town's insistence on the application was based on new procedures required for such approvals, Defendants' Exhibit Q, and a belief by the Town that the Fellowship had exceeded the limits for the change in grade and elevation set in the prior authorization received from Marten. Grant Deposition at 25-26.⁵⁶ The Fellowship submitted its plan, as Ulatowski had requested, for improvements and cleanup at the site, and it was approved by the Town Planning Board at its September 11, 1997 meeting. Id. at 26-27; Defendants' Exhibit O.

55 Plaintiffs maintain that Ulatowski claimed to have no knowledge that the Fellowship had previously received Town approval of its improvements at the site. Raum Certification ¶ 30. Grant testified that at the meeting Ulatowski asserted Plaintiffs had no approved site plan for the property improvement project. Grant Deposition at 23. Grant's belief, based on the statement of Richard Brox, the Fellowship's landscape architect, was that such approval had been previously obtained by Brox. Id. However, when asked when such a site plan had been approved, Grant could not recall and assumed it was submitted shortly after the Fellowship's property at 3325 Genesee Street was acquired in 1992. The record shows otherwise. First, it is undisputed that the property at issue was acquired by the Fellowship in 1994. According to correspondence between Brox, David Abbatoy, Grant's predecessor, and Marten, approval from Marten for cleanup, brush removal and installation of a softball backstop at the site was received by Brox from Marten by letter dated June 17, 1996, Defendants' Exhibit H, in response to Brox's letter of February 16, 1996. Defendants' Exhibit G. As Ulatowski was not copied on either correspondence, it is not surprising that he was unaware of Marten's prior approval for this work. Neither document appears to constitute a "site plan" approved by the Town Planning Commission. Moreover, as Abbatoy left his position at the Fellowship in "early 1997," Grant Deposition at 16, as Abbatoy's successor, Grant was not involved in the process leading to Marten's June 17, 1996 approval of Plaintiffs' request through Brox for permission to improve and clean up the site. Defendants' Exhibit H. Therefore, Grant's belief that the Fellowship was being required by Ulatowski to "resubmit" a site plan to the Town Planning Commission for approval, Grant Deposition at 23, is incorrect as there is no evidence that the cleanup, softball backstop and brush removal project proposed by Brox to Marten, which did not include any tree removals, had previously received Planning Board approval.

56 Plaintiffs offer no evidence that the asserted new procedures requirement as explained by Ulatowski to Grant and the other Fellowship representatives at the meeting was non-existent and pretextual. See Defendants' Exhibit Q, Town Board Resolution dated May 20, 1996, adopting new Development Review Process. Based on the record, the only formal "landscape plan" for the Fellowship property was submitted by Brox on April 24, 1992 in connection with conversion of the former car dealership building at 3325 Genesee Street for Fellowship use as its church building. Defendants' Exhibit B. Plaintiffs' also obtained approval by the Town Building Inspector on April 3, 1993 for a parking lot on the same parcel. Defendants' Exhibit D. The subsequent communications between the Town and Plaintiffs regarding proposed tree cutting and brush removal for 3125 Genesee Street in 1995 and 1996 occurred without Planning Board approval. Defendants' Exhibits F, G H. Plaintiff's request for approval of improvements at the 3125 Genesee Street property was submitted by Brox on February 16, 1996, Defendants' Exhibit G, three months prior to adoption of the new approval procedures. Thus, no evidence supports an inference that Ulatowski's request that the Fellowship submit a formal proposal to the Planning Commission for approval in accordance with the newly adopted resolution was pretextual.

During the August 11, 1997 meeting, Grant asked Ulatowski whether there was "anything about our church" or "its members" that Ulatowski disliked and whether such animosity "would be the reason . . ." for the policy change. Grant Deposition at 29. According to Grant, Ulatowski "assured [Grant] it was not." Id. at 29. Grant further recalled that Ulatowski then "commented that he had gained the name church harasser by his co-workers [ sic]." Id. at 32. Ulatowski does not dispute that he made such a statement but insisted that he did so in response to the "questioning . . . of [his] impartiality" by Fellowship representatives at the meeting, particularly Grant. Ulatowski Deposition at 54. According to Ulatowski, he informed Grant and the other Fellowship representatives at the meeting that rather than acting upon "prejudice or sympathy," regarding enforcement of Town ordinances, his "duties [had] compelled [Ulatowski] to place the deacon of my own parish in court" based on the deacon's violation of the Town's zoning ordinance. Id. at 54-55.⁵⁷ However, Ulatowski's statement, as relied upon by Plaintiffs to defeat summary judgment, constitutes inadmissible hearsay, Fed.R.Evid. 802, and only admissible evidence may be relied upon to avoid summary judgment. Fed.R.Civ.P. 56(e). See Shelden v. Barre Belt Granite Employer Union Pension Fund, 25 F.3d 74, 79-80 (2d Cir. 1994).

57 Marten testified that Ulatowski's "church harasser" nickname was given to Ulatowski by a coworker because of the incident as a "joking kind of dig." Marten Deposition at 26.

"'Hearsay' is a statement, other than one made by the declarant . . . offered as evidence to prove the truth of the matter asserted." Fed.R.Evid. 801(c). Such hearsay is inadmissable as evidence except for certain exceptions including that the statement constitutes an admission. ABB Industrial Systems, Inc. v. Prime Technology, Inc., 120 F.3d 351, 357 (2d Cir. 1997). To constitute an admission, the statement must be either the party's own statement or one "of which the party has manifested an adoption or belief in its truth." Fed.R.Evid. 801 (d)(2)(A). Here, the record plainly shows, and Plaintiffs do not contend otherwise, that the statement, i.e., describing Ulatowski as a "church harasser," was made by the coworker, a person other than the declarant Ulatowski, and submitted by Plaintiffs "to prove the truth of the matter asserted." Fed.R.Civ.P. 801(c). Moreover, Ulatowski did not adopt the statement or manifest a belief in its truth; rather, Ulatowski repeated to Grant the nickname in an effort to rebut Grant's implication of religious bias against Ulatowski. Given the circumstances of the disputed utterance, it cannot be fairly said that Ulatowski's recounting of the nickname constitutes his "adoption" of the truth of the statement as proffered by Plaintiffs. The statement accordingly does not qualify as an admission and under Rule 801(d)(2)(A), therefore, because it is offered to avoid summary judgment by Plaintiffs as evidence of its truth i.e., that Ulatowski was in fact a "church harasser" and thus acted against Plaintiffs because he held a discriminatory attitude toward religious organizations, including the Fellowship, the statement constitutes inadmissible hearsay.

Second, although evidence of official hostility toward religion per se may support a Free Exercise Clause violation claim, Church of the Lukumi Babalu Aye, Inc., supra, 508 U.S. at 531 (Free Exercise Clause violated if "the law at issue discriminates against some or all religious beliefs") (underlining added), the undisputed facts surrounding Ulatowski's use of the term "church harasser" in response to Grant's questioning of Ulatowski's motives at the August 11^th meeting do not support a reasonable inference that Ulatowski was acknowledging any genuine dislike for religion on his part. It is unreasonable to believe that a person confronted by an explicit or strongly implied accusation of bias against a particular religion would respond "no, I don't dislike your religion, I just hate all religions!" and mean it. Yet, given Plaintiffs' broad theory of liability against Ulatowski, and the other Defendants, based on Ulatowski's "church harasser" statement, that is precisely the meaning Plaintiffs wish the court to draw from Ulatowski's reference to his workplace nickname. The court concludes, however, that no reasonable juror would accept as accurate such a farfetched interpretation of Ulatowski's actual intent. Therefore, Plaintiffs' reliance on Ulatowski's workplace nickname as a "church harasser" cannot defeat summary judgment as to Plaintiffs' First Cause of Action. Therefore, as no evidence is presented upon which the trier of fact could reasonably find that Defendants Conway, Marten or Ulatowski acted against Plaintiffs based on a religious or racial discriminatory motive causing any abridgment of Plaintiffs' rights under the Free Exercise Clause, summary judgment should be GRANTED as to Plaintiffs' First Cause of Action.

5. Plaintiffs' Free Speech and Association Claims Against Defendants Board, Conway, Marten and Ulatowski — Plaintiffs' Second Cause of Action.

In addition to their claim that Defendants interfered with their First Amendment protections of the freedom of religious exercise, Plaintiffs also claim Defendants violated their First Amendment right to free speech and association. Specifically, Plaintiffs assert that "through systematic harassment, intimidation and discrimination . . . [Defendants] have interfered with Plaintiffs' free speech and association." Complaint ¶ 36. Plaintiffs particularly allege that Defendants' disruption of Plaintiffs' church services and the issuance of the criminal complaint against Grant for violation of the Tree Preservation Ordinance violated these rights and had a "chilling effect" on their exercise by Plaintiffs. Complaint ¶ 37. Plaintiffs also claim such violations have caused "substantial and irreparable harm" to Plaintiffs' freedom of speech and association, and "may" have discouraged people from "associating with the Church. . . ." Complaint ¶ 38.

It is well established that the First Amendment also guarantees free speech except where some limitation is necessary to avoid "clear and present danger," or overthrow of the government by force or violence.⁵⁸ Dennis, supra, 183 F.2d at 213. Similarly, the First Amendment's right to free association ensures the "right to join together to advocate opinions free from government interference." Roberts, supra, 468 U.S. at 622.⁵⁹ To establish a § 1983 action for infringement of the right to free speech, the plaintiff must identify the allegedly infringed speech. Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 287 (1977) (herein, " Mt. Healthy City School District"). Like the right to free speech, "[t]he right to associate for expressive purposes is not absolute . . . [and] [i]nfringement on that right may be justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms." Roberts, supra, 468 U.S. at 623.

58 "Congress shall make no law . . . abridging the freedom of speech. . . ." U.S. Const. amend I, cl. 2.

59 Plaintiffs' Memorandum of Law filed in opposition (Doc. No. 21) provides no explanation as to how any of the individually named Defendants allegedly interfered personally with their First Amendment right to free association. Although Plaintiffs allege in the Complaint that Michael Papero interfered with Plaintiffs' freedom of association by disrupting church services and that Officer Mueller also abridged such right in serving a summons on Plaintiff Grant, Complaint ¶¶ 23, 24, 30, neither is named as a defendant in this action.

Additionally, "[w]hile governmental action which falls short of a direct prohibition in the free exercise of speech may be subject to constitutional challenge . . . 'not every assertion of a chilling effect [on protected speech] will be considered a judicially cognizable First Amendment violation.'" Hankard v. Town of Avon, 126 F.3d 418, 423 (2d Cir. 1997) (citing Laird v. Tatum, 408 U.S. 1, 12-13 (1972) (quoting Levin v. Harleston, 966 F.2d 85, 89 (2d Cir. 1972))). To prevail on such claims, a § 1983 plaintiff "must establish that (1) their 'conduct is deserving of [F]irst [A]mendment protection' and (2) the defendant's conduct 'was motivated by or substantially caused by [plaintiff's] exercise of free speech.'" Hankard, supra, 126 F.3d at 421 (quoting Rattner, supra, 930 F.2d at 208 (quoting Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir. 1987) (citing Mt. Healthy City School District, supra, 429 U.S. at 287)). "Allegations of a subjective 'chill' are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm." Laird, supra, 408 U.S. at 13-14. Accord Hankard, supra, 126 F.3d at 423. Thus, to avoid summary judgment on such claims, a plaintiff "must make specific allegations that indicate a deprivation of [plaintiff's freedom of speech]; general, indirect and conclusory allegations are not sufficient." Id. (citing Alfaro Motors, Inc., supra, 814 F.2d at 887; Koch v. Yunick, 533 F.2d 80, 85 (2d Cir. 1976)).

In response to Defendants' motion, Plaintiffs primarily assert that Defendants have "evad[ed] the parts of the evidentiary record, wherein lies [ sic] a plethora of facts which could lead a reasonable jury to find in favor of the Plaintiffs." Plaintiffs' Memorandum at 5-6. The salient "parts" of the record to which Plaintiffs refer include Conway's "discriminatory statements concerning the Church," and Ulatowski's use of the "church harasser" nickname. Id. at 6. However, as Plaintiffs, not Defendants, have the burden of showing, in opposition to summary judgment, a requirement for trial based on admissible evidence in the record, Lujan, supra, 504 U.S. at 561, Plaintiffs' generalized assertions and references to Conway's disputed comments to the Andzels, two years before the first stop work order in August 1997, and the dubbing by his coworkers of Ulatowski as "the church harasser," are insufficient to avoid summary judgment on Plaintiffs' Second Cause of Action.

Specifically, Plaintiffs contend, Plaintiffs' Memorandum at 5, that Defendants have not demonstrated the lack of evidence on "an essential element" of Plaintiffs' claim. But, as fully discussed in connection with Plaintiffs' Free Exercise claim, Discussion, supra, at 21-47, 58-95, it is Plaintiffs who have failed to meet their burden in opposing summary judgment to put forth evidence showing evidence requiring trial on threshold questions of § 1983 liability and the presence of constitutional injury. For example, with specific reference to Plaintiffs' Free Speech claim, Plaintiffs point to no admissible evidence in the record showing that any of Plaintiffs' speech, whether political, religious or social, was impaired as a result of any action taken by Defendants against Plaintiffs. Additionally, even assuming that, as claimed by the Andzels, Conway made insulting remarks suggestive of a discriminatory attitude, Andzel Deposition at 35; Discussion, supra, at 79-82, 86-87, no evidence demonstrates that the tax exemptions denied by Conway and the Board in 1998 and 1999 for the 3125 Genesee Street property, which transpired several years after Conway's alleged remarks, had any adverse impact whatsoever on any Plaintiff's ability to communicate or associate with each other, other Fellowship members, or the general public. Plaintiffs point to no evidence, by affidavit or otherwise, from any person that they were deterred from speaking or communicating with Plaintiffs or from attending and participating in the Fellowship's religious services or special programs as a result, either directly or indirectly, of the tax exemption denials. Additionally, Plaintiffs do not even contend that the threat of potential payment of any real property taxes by Plaintiffs interrupted or lessened the exercise of their capacity to exercise their freedom of speech or associational freedom. Such evidence as relied on by Plaintiffs to oppose summary judgment regarding liability as to Conway and the Board, based on the disputed tax exemption denials, is therefore not merely conclusory, it is non-existent.

Rather, as the record shows, following Conway's statements in 1995 and the tax exemption denials in 1995, 1998 and 1999 at issue in this case, the Fellowship conducted regular services, including special programs such as Mr. Bishop's special lecture program at the Fellowship on October 22, 1998, a Friday evening, not a day on which the Fellowship conducted its regular religious services. As admitted by Andzel and the Fellowship's attorney, after the initial tax exemption for the property was denied in 1995, shortly after its purchase in 1994, the Fellowship continued to expand its use of the property for related religious meetings, revival events, parking, and recreational activity. Andzel Affidavit ¶ 4; Raum Declaration ¶ 16 ([the Fellowship] produced even more evidence . . . of its continued and increased religious use of the property.") At a meeting of the Town's Board of Assessment Review, held July 6, 1999, Mr. Raum informed the Board in support of the Fellowship's request for a tax exemption, that the Fellowship had received permits for "further improvement" of the parcel, and was then using it "for a host of things, including outdoor revival meetings, church picnics, and other things that are in furtherance of the Church." Plaintiffs' Exhibit 7 at 3-4 (underlining added). In response to a question from the Board's chairman as to whether the Fellowship's use of the property had changed from 1998 to 1999, Raum stated that ". . . the [Fellowship's] use [of the property] has gotten more [ sic]. They used it last year, and they've used it even more this year." Id. (underlining added). Raum further informed the Board that contrary to Conway's opinion, "the use [of the land] has gotten even more intense. . . . They've [the Fellowship] used it for outdoor Easter service. They've used it for picnics." Id. at 8-10 (underlining added).

Because the Fellowship was initially unsuccessful in its efforts to obtain a tax exemption on the property for 1995, Plaintiffs filed for judicial review, and the denial was affirmed by New York Supreme Court on December 8, 1998. Defendants' Exhibit HH.⁶⁰ As noted, it was in connection with the Fellowship's application for the 1995 tax exemption that Conway allegedly made the remarks about the Fellowship which the Andzels found so offensive. Andzel Affidavit ¶¶ 5-7. It is therefore surprising that, given the apparent strength of the Andzels' belief that in 1995 Conway had acted against the Fellowship based on a discriminatory animus, as now claimed in this lawsuit, commenced in 1999, no such discrimination as a basis to overturn Conway's denial was asserted by Plaintiffs when contesting the 1995 exemption denial, at a time closely proximate to Conway's alleged discriminatory comments to the Andzel's, as they could easily have done under New York law.⁶¹

60 The written order confirming the denial was not entered until January 11, 1999. Id. at 1.

61 Pursuant to Article 78 of the New York Civil Practice Law and Rules, as relevant, an aggrieved party may challenge in a special proceeding in New York Supreme Court the administrative actions of a governmental agency or municipality on the grounds that they were arbitrary, capricious or illegal. N.Y.Civ.Prac. L. R. § 7801, et seq. (McKinney 1994). See, e.g. Capizzi v. N.Y. State Div. of Alcoholic Beverage Control, 647 N.Y.S.2d 594 (App.Div. 4^th Dep't 1996) (discriminatory enforcement claim against state agency must be raised in Article 78 proceeding); Village of Williston Park v. Argano, 602 N.Y.S.2d 878, 879 (App.Div. 2^nd Dep't 1993) (alleged discriminatory enforcement of village zoning ordinance should be raised in Article 78 proceeding). See Foundation for "A Course in Miracles", Inc. v. Theadore, 568 N.Y.S.2d 666 (App.Div. 3d Dep't 1991) (reviewing pursuant to N.Y. Civ.Prac. L R Article 78 and N.Y. Real Property Tax Law § 420-a(11) denial of real property tax exemption request by corporation organized exclusively for religious purposes), appeal dismissed, 580 N.E.2d 409 (N.Y. 1991) (Table).

In any event, the Fellowship did not reapply for an exemption on the property until 1998 because "[c]ircumstances had considerably changed" since the Plaintiffs' unsuccessful 1995 application "and the property was being used more and more for activities directly related to the Fellowship's religious mission." Andzel Affidavit ¶ 8 (underlining added). The Fellowship applied for an exemption on the same property in 1998 and 1999, which were again denied by Conway; the Board affirmed both denials. Id. ¶ 9. Both denials were later annulled by decision of New York Supreme Court, id. ¶ 11, and the trial court's decision was affirmed by the Appellate Division of New York Supreme Court in December 2001. Id. ¶ 12. However, based on a review of the text of the Appellate Division's decision, Plaintiffs again neglected to assert any form of discrimination as the reason for rejection of their requests which they now specifically assert in the instant action. Exemption requests for tax years 2000 and 2001 were also denied by the Town. Id. No information was available, at the time Plaintiffs' opposition to Defendants' motion was filed on February 19, 2002, as to whether Plaintiffs have received a decision from the Town on Plaintiffs' 2000-2001 tax exemption requests, or filed any requests for judicial review in New York Supreme Court.

While the Plaintiffs suggest Conway's denials of the Fellowship's tax exemption request may have caused some administrative inconvenience to Plaintiffs, the only tax exemption request, as far as the record shows, that was actually denied to the Fellowship is the 1995 application, a denial affirmed by the state court because the application failed to meet the state law criteria for an exemption, i.e., that the property was not exclusively used for religious purposes.⁶² Thus, even if it is assumed, that Conway's exemption denial in 1995 resulted from improper motives, that the request was determined by state court to have been properly denied under neutral state law based on a record before the court negates a finding that such assumed unconstitutional motives caused Plaintiffs to suffer an injury to their right to free speech or association. Further, as discussed, Discussion, supra, at 90-91, because there is no First Amendment right to a real property tax exemption based on religious use of property, even if such an adverse effect could be demonstrated, no cognizable constitutional violation accrued to Plaintiffs.

62 Defendants' Exhibit HH; as discussed, Discussion, supra, at 33-34, Plaintiffs' exemptions for 1998 and 1999 were eventually granted by decision of New York Supreme Court. Plaintiffs' Exhibit 9.

Saliently, Plaintiffs point to no evidence suggesting their ability to express and communicate their religious view with one another, with Fellowship members or the public, was interfered with as a result of Conway's and the Board's denials. Nor does the Fellowship point to any diminished extent of its religious and congregative use of either of its properties for the benefit of its members or the public, and, based on the representations of their attorney in connection with the 1999 hearing before the Board and Andzel's averments, contrary to Plaintiffs' allegations in this lawsuit, no such hindrance ever occurred. As noted, Plaintiffs asserted publicly, in support of the tax exemption applications, that such usage had actually increased, despite Defendants' attempts to frustrate such use through unconstitutional means as described in the Complaint by Plaintiffs. Thus, no free speech or free association violations, including any supposed chilling effect, as alleged by Plaintiffs, require trial based on Conway's and the Board's denials of tax exemptions for the 3125 Genesee Street property or Conway's alleged statements manifesting any perceived discriminatory opposition to Plaintiffs' bids for tax exemptions. The paucity of evidence demonstrating Marten's and Ulatowski's liability for Plaintiffs' freedom of association claim has been discussed in detail in connection with Plaintiffs' free exercise of religion claim and need not be repeated. Discussion, supra, at 80-82, 91-95. Alternatively, as discussed, Discussion, supra, at 29 n. 23, no facts are alleged in the Complaint against Conway or the Board upon which § 1983 liability for violating Plaintiffs' free speech rights may be predicated. On either ground, Defendants' motion should be GRANTED and Plaintiffs' Second Cause of Action DISMISSED as to Conway and the Board.

Defendants' motion for summary judgment on Plaintiffs' free speech violation claim against Marten and Ulatowski should also be GRANTED. As fully discussed in connection with Plaintiffs' standing and Free Exercise Clause claim, Discussion, supra, at 21-47, 80-82, 91-95, Plaintiffs present no evidence tending to show that any of Plaintiffs' speech, private or public, during the period commencing with Ulatowski's first stop-work order in July 1997 to the time of Plaintiffs' response to Defendants' motion, whether religious or non-religious in nature, was curtailed by any action or decision taken by either Marten or Ulatowski. Even assuming that the actions of Papero and Mueller occurred, as Plaintiffs claim, Plaintiffs fail to demonstrate how such conduct actually interfered with anyone's speech or ability to communicate. Assuming further that some degree of disruption may have resulted from Papero's two Sunday visits to the Fellowship during religious services and Mueller's alleged "arrogant" manner of service of the summons on Grant, because § 1983 liability must be personal, Back, supra, 365 F.3d at 127 (citing Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996)), unless there is some evidence from which a jury could find that either Marten or Ulatowski directed Papero's and Mueller's actions, or acquiesced in them with awareness they had inflicted a constitutional liability, no liability for such a free speech violation could attach to either Defendant. Id. Here, Plaintiffs fail to present any such evidence. Specifically, nothing in Marten's, Ulatowski's or Papero's depositions shows such a degree of direction, control or acquiescence with respect to Papero's and Mueller's conduct upon which § 1983 liability may be imposed.⁶³

63 As far as the record shows, Mueller was not deposed in connection with this action.

Although Marten did request Papero to inspect and mark the trees on the Fellowship's property suitable for removal, no evidence suggests Marten authorized or directed that Papero visit the Fellowship on Sunday during scheduled religious services, or attempt to discuss Papero's intended inspection with Grant during a Fellowship service. Marten Deposition at 30-31. As noted, although a member of the Town's CAC, Papero was not an employee in Marten's department and, after learning of the timing of Papero's visits to the Fellowship, Marten categorically disagreed with Papero's decision to conduct the requested inspection and tree markings on a Sunday. Although Grant maintained Papero had acted inappropriately and that he, Grant, had upbraided Papero for his poor judgment in attempting the inspection on a Sunday, demanding that Papero scheduled with Grant any future visits for a weekday, there is no indication that Grant even attempted to complain to Marten about Papero's behavior after either visit until Grant wrote to Marten on December 5, 1997, well over a month after the second Papero visit, asserting the Fellowship had not as then received any official authorization to proceed with tree removal work at the site. Plaintiffs' Exhibit 11. Although Grant's December 5^th letter claims, id. at 2, that Marten had failed to respond to earlier letters from Grant, significantly no copies of such an earlier correspondence were included in Plaintiffs' response to the motion, and there is no representation by Grant that the earlier letters specifically complained about Papero's alleged rude behavior. See Poe v. Leonard, 282 F.3d 123, 140 (2d Cir. 2002) (to establish personal liability of supervisor for § 1983 violation, plaintiff must establish supervisor either was directly responsible for alleged unlawful conduct, or had knowledge of such conduct yet failed to take corrective action as to such conduct). Accordingly, as Marten was not made aware of the alleged problem that Grant had experienced with Papero, no basis upon which to attribute to Marten § 1983 liability based on Papero's conduct exists.

Further, in the absence of any evidence from Plaintiffs that Papero's employment record, or other known personal characteristics, should have alerted Marten there was a need to provide more specific direction or supervision of Papero relative to the requested visits to the site to inspect and mark trees, there is no reasonable basis in this record from which to find that Marten acted with deliberate indifference toward the potential violation of Plaintiffs' free speech rights by Papero in connection with Papero's inspection of the site. See Bryan County, supra, 520 U.S. at 403-05. Plaintiffs do not claim Marten is liable based on a failure to train or adequately supervise Papero in regard to the tree inspections and markings on the property.

With respect to Ulatowski's potential liability for any free speech violations, Plaintiffs fail to point out any evidence in the record from which it may be inferred that Ulatowski directed or encouraged Papero's inspection activities, or that Ulatowski was even aware that Marten, Ulatowski's supervisor, had solicited Papero's assistance. Particularly, while Marten discussed with Ulatowski, Marten Deposition at 17, filing charges against Grant for violating the Tree Preservation Ordinance by cutting trees eight to ten inches in diameter at the site, Marten Deposition at 14, there is no indication in Marten's deposition testimony that Marten's request to Papero to assist with enforcement of the Tree Preservation Ordinance was brought to Ulatowski's attention prior to Papero's two visits in October 1997. Marten Deposition, passim. ⁶⁴ No questions to Marten by Plaintiffs during Marten's deposition even raised the issue. A review of those portions of Ulatowski's deposition reveals the same lack of Ulatowski's foreknowledge or involvement with Papero's actions. Plaintiffs' Exhibit 33 ( passim), Defendants' Exhibit A. Thus, no admissible evidence has been presented by Plaintiffs sufficient to require trial on whether Marten or Ulatowski can be found liable to Plaintiffs based on Papero's actions even assuming such actions interfered with the exercise of Plaintiffs' right to free speech, including speech relating to religious matters and worship which, as discussed, Discussion, supra, at 80-82, 91-95, the record fails to demonstrate occurred.

64 A copy of Marten's December 31, 1997 letter to Grant confirming that Papero's inspection and tree marking was complete was sent to Ulatowski. Defendants' Exhibit S.

The same conclusion must be reached as to Marten's and Ulatowski's potential liability for Plaintiffs' alleged free speech violations based on Mueller's service of the summons upon Grant as contended by Plaintiffs. While Marten acknowledged his awareness that the Town Police Department was used to serving summonses for violations of Town ordinances, usually 30 days after filing the complaint with the court, Marten's Deposition at 19, 21, no testimony suggests that Marten was aware that Officer Mueller had been assigned to serve the summons or had any role in such assignment, or contradicts Marten's contention that he learned of the service well after the fact. Id. at 20-21. According to the record, the affidavit of Richard Cartwright, a Fellowship neighbor who claimed to have witnessed the alleged illegal cuttings upon which the criminal charge against Grant was lodged, was executed on September 26, 1998, describing observed violations of the Tree Preservation Ordinance by Fellowship volunteers and the criminal complaint was signed by Ulatowski on October 1, 1998. Plaintiffs' Exhibit 21; Defendants' Exhibits BB and CC. Mueller's service of the summons occurred on October 22, 1997, within the normal range of time for such matters according to Marten's understanding. Marten's Deposition at 19, 21. Thus, no evidence infers that Mueller was selected by Marten or Ulatowski or any other Defendant to serve the summons based on any personal characteristics suggesting a tendency toward undue aggressiveness in serving summons, in a manner disruptive of First Amendment rights, or to time the service of the summons so as to purposely interfere with or "chill" Plaintiffs' free speech rights in connection with the Fellowship's special programs, particularly the special lecture program that had been scheduled for that date. Nor does the evidence support that any Defendant, or Mueller, was even aware of the Bishop lecture program as scheduled at the Fellowship before Mueller decided to serve the summons on Grant. A careful reading of the record provided by the parties on the instant motion fails to reveal any effort by Plaintiffs to establish any evidence to the contrary. Mueller's arrival at the Fellowship's meeting place at the end of Bishop's lecture can therefore only be reasonably viewed as coincidental and not attributable to any individual Defendant. Accordingly, Plaintiffs have not demonstrated any justification for trial based on their theory that both Marten and Ulatowski are liable for free speech abridgments resulting from Papero's Sunday visits to the Fellowship to effect the necessary tree inspection or Mueller's service of the criminal summons on Grant. Defendants' motion should therefore be GRANTED as to Plaintiffs' Free Speech claims against the Board, Conway, Marten and Ulatowski.

Plaintiffs' First Amendment claims of free association violations, also alleged in Plaintiffs' Second Cause of Action, against Marten and Ulatowski should, for similar reasons, also fail to require trial. As discussed, Discussion, supra, at 96, the First Amendment right to free association ensures the "right to join together to advocate opinions free from government interference." Roberts, supra, 468 U.S. at 622. Such right includes the personal liberty interest, protected from state action under the Fourteenth Amendment, in "engaging in those activities protected by the First Amendment — speech, assembly, petition for redress of grievances, and the exercise of religion." Id. at 618. Based, however, on a careful scrutiny of the record, the court finds no triable issue on Plaintiffs' First Amendment free association claim, and Defendants' motion should therefore be GRANTED as to this claim against Defendants Board, Conway, Marten and Ulatowski.

Despite Plaintiffs' insistence to the contrary, the evidence put forth by Plaintiffs in opposition to Defendants' motions that Papero's and Mueller's actions at the Fellowship's church building could be considered unnecessarily insensitive to the circumstances, if believed, demonstrates unequivocally the disputed conduct did not interfere with Plaintiffs' constitutionally protected associational interests. Specifically, no Fellowship proceedings, involving Plaintiffs or Fellowship members, had to be terminated, none were prevented from taking place, no speech or congregative gatherings of a religious, political or social nature, on the part of Plaintiffs or their coreligionists, was limited, and no effort by Plaintiffs to complain to or petition the Town or other governments was obstructed. In fact, the record establishes that the Fellowship's services, including postsermon "fellowship lines," "ministry lines," socializing and fundraising activity, presumably by Andzel, Grant and other Fellowship members, in the Fellowship's church foyer continued despite Papero's allegedly disruptive behavior. Grant Deposition at 50 ("the sermon part was over. . . . The next part of the service had taken place."). Similarly, Mueller's arrival at the Fellowship's building to serve the summons, even if done "arrogantly," as Grant described it, occurred after Marcus Bishop, the featured speaker, had left the Fellowship's church building with Andzel for a departing flight at the airport nearby, and other than Grant's unpleasant experience in being the person served, Mueller's conduct did not disrupt or terminate the postlecture "fellowshipping," then taking place at the Fellowship's church building among the lecture attendees. Andzel Deposition at 69. Further, while Plaintiffs have alleged that Defendants' discriminatory actions "may" have caused "some" people not to join the Fellowship, Complaint ¶ 34, or participate in its religious programs, no competent evidence supports Plaintiffs' speculation regarding such lower participation. Discussion, supra, at 41-42 n. 31.

Ulatowski's stop work orders admittedly did interrupt the work by Fellowship volunteers to clear the site of unnecessary brush and trees as planned, Complaint ¶¶ 28-29; however, as discussed, Discussion, supra, at 80-82, 91-95, no evidence supports a finding that the stop work orders were issued for discriminatory motives, or that Plaintiffs claim any First Amendment protected associational interests in such volunteer work. As a detailed review of the history of Plaintiffs' approvals from the Town for the intended cleanup and improvement of the site shows, Plaintiffs did not actually receive approval of a formal site improvement plan from the Town Planning Commission prior to Ulatowski's stop work orders. Discussion, supra, at 92 n. 56. Rather, a written approval of proposed brush removal, tree clearance and baseball backstop installation was given by Marten to the Fellowship, in a June 17, 1996 letter addressed to Abbatoy, Defendants' Exhibit H, based on a prior conversation with Brox and letters received from Brox on behalf of the Fellowship, dated February 16, 1996. Defendants' Exhibits G. The first stop work order issued by Ulatowski on July 17, 1997, Defendants' Exhibit K, the meeting between Ulatowski and Grant took place on August 17, 1997 and the Town's formal approval for the Plaintiffs' new site improvement plan was given by the Planning Board on September 11, 1997. Defendants' Exhibit N. Plaintiffs nevertheless allege that Defendants somehow prevented them from commencing the land improvement work until January 1998, despite the fact that Plaintiffs also allege that the Town issued a permit for the work on September 2, 1997. Complaint at ¶ 28.⁶⁵ Although Marten advised, as discussed, infra, that any dead tree removals needed to await Papero's inspection, Plaintiffs did not object to this means of assuring compliance with the requirements of the Tree Preservation Ordinance. Therefore, the record does not support the conclusion that Defendants prevented Plaintiffs from proceeding with their planned improvements until January 1998 to the extent that such delay violated Plaintiffs' free association rights.

65 The approval was actually given by the Town Planning Board on September 11, 1997. Defendants' Exhibit N; Grant Deposition at 31, 45.

Plaintiffs do not contest that in connection with obtaining approval of the improvement plan for the vacant parcel their representative, Richard F. Brox, a licensed landscape architect, received a letter from Marten dated October 10, 1997, informing Plaintiffs they could proceed with work at the site and that Papero would assist in that process by marking the dead trees suitable for removal in accordance with Marten's authorization. Defendants' Exhibit O; Grant Deposition at 54-55. In response to Grant's inquiries, Plaintiffs' Exhibit 11, Marten advised Plaintiffs, by letter dated December 31, 1997, that Papero's marking of the trees had been completed, and that Plaintiffs could proceed with the work. Defendants' Exhibit S. The record does not indicate whether Papero specifically informed Grant or Marten that he had marked the trees approved for removal at the site on his second visit to the Fellowship on October 26, 1997. According to Papero, Grant was informed of the purpose of that visit, and Papero did complete marking the trees at that time. Papero Deposition at 35. Grant, however, claimed, based on his own inspection of the site after Papero's second visit, that he was unable to find any evidence that Papero had marked specific trees for removal. Grant Deposition at 62-63. Despite the apparent absence of the expected markings by Papero, and Plaintiffs' asserted anxiousness to complete their planned improvements to the site, Grant, nevertheless, did not inquire as to the status of Papero's inspection activity until he sent the December 5, 1997 letter to Marten. Plaintiffs' Exhibit 11 at 2. ("I am still waiting to hear from him [Papero] or your office."). Nor did Grant, in his correspondence, inform Marten that the tree markings Papero were to have made were not observable to Grant based on his personal contemporaneous inspection of trees on the site. See Defendants' Exhibit 11. As noted, Brox had been advised by Marten in his October 10, 1997 letter that Papero would "identif[y] specific dead trees that will be removed." Defendants' Exhibit O (underlining added). Grant acknowledged he was aware of this fact on October 10, 1997, prior to Papero's first visit on October 12, 1997, Plaintiffs' Exhibit 11 at 1, ¶ 2 ("on October 10, 1997 I received a copy of a letter from you to Richard Brox."); Grant Letter to Marten dated January 6, 1998, Defendants' Exhibit 12 ("You stated in your letter dated October 10, 1997 that your office would mark the trees and brush on our property to be removed.") (underlining added).⁶⁶ Grant also acknowledged that Papero "would identify the trees that would be cut." Grant Deposition at 47. Papero testified that on his second visit he "went back there and I marked the trees, I come back into the church . . . and . . . I says I marked all the trees." Papero Deposition at 28.

66 At his deposition, Grant claimed he had not seen Marten's letter until "after [Papero's] visit." Grant Deposition at 53.

Given the obvious weakness of Plaintiffs' evidence on this question, the court finds no reasonable fact trier could conclude that any delay in completion of Plaintiffs' planned improvements to the site, beyond those caused by Plaintiffs' own inactions or misapprehension as to whether Papero's inspection and tree markings had been timely effected as Marten directed, was caused by any hostility on the part of Defendants toward Plaintiffs free association rights based on religious or racial considerations. This conclusion is reinforced by Grant's statement before the Board of Assessment Review at its July 6, 1999 hearing on Plaintiffs' tax exemption request that Ulatowski's two stop work orders in September 1998 were prompted by a "[c]omplaint from a neighbor that we [the Fellowship] were making too much noise while we were doing work on the land." Plaintiffs' Exhibit 7 at 13. Notably, no other reason for Ulatowski's stop work order was intimated by Grant at that time, two years after the events and one day before the instant action was commenced in which Plaintiffs specifically alleged that the stop work orders issued by Ulatowski resulted from Defendants' racial and religious animus toward Plaintiffs. Complaint ¶¶ 20 c., 21, 27.

In fact, according to Grant, two Town police officers ordered work stopped in January 1998 because of a resident's complaint that Plaintiffs were clearing trees without permission, Grant Deposition at 63, causing the Fellowship's twelve volunteers to cease work at the site. Id. at 64. Significantly, Plaintiffs proffer no evidence that the officers' request to Plaintiffs to cease work on that occasion was based on the direction any Defendant. Later that year, on September 3, 1998, based on complaints from neighbors that the Fellowship was cutting down trees greater than the permitted four inch diameter, Ulatowski issued another stop work order. Id. at 65-66; Plaintiffs' Exhibit 17. A further stop work order was issued by Ulatowski on September 28, 1998, Plaintiffs' Exhibit 22, again based on a local resident's complaint that the Fellowship was cutting lives trees larger than four inches in diameter, in violation of the approvals granted by the Town. Plaintiffs' Exhibit 21. Plaintiffs do not establish that the complaints were motivated by religious or racial hostility, or even if they were, that Defendants were aware of this fact when they acted in response. Thus, in both instances, so far as the record reveals, the causes of the work stoppages at the site were based on considerations other than Plaintiffs' religion or the race of the Fellowship's members. Plaintiffs' reliance on Ulatowski's "church harasser" nickname is for the reasons discussed, Discussion, supra, at 91-95, insufficient as a matter of law to require trial on whether Ulatowski held a bias against Plaintiffs based on religion, and whether such bias was the primary motivation for his official actions in regard to Plaintiffs and the property, including the work stoppages at the site.

As discussed, the denials of the Fellowship's tax exemption requests have not been demonstrated to have in any way impeded Plaintiffs' use of their property at 3125 Genesee Street for congregative religious purposes; indeed, Plaintiffs' requests in 1998 and 1999 for the exemption were entirely predicated on the fact that Plaintiffs had continuously used the property exclusively in connection with Fellowship religious and related activities despite the disputed prior denials. Discussion, supra, at 32-35. Plaintiffs make no attempt to explain how the denials otherwise adversely affected their ability to conduct religious activity at the Fellowship church building or the site. Thus, the court finds nothing in the record requiring trial on Plaintiffs' free association claim, and Defendants' motion should therefore be GRANTED as to Plaintiffs' Second Cause of Action, and the claim DISMISSED as against the Board, Conway, Marten and Ulatowski. 6. The Selective Prosecution Claim — Plaintiffs' Third Cause of Action

For their Third Cause of Action, Plaintiffs allege that the individual Defendants, particularly Marten and Ulatowski, subjected them to selective enforcement of the Town's Building Code in violation of Plaintiffs' right to equal protection of the law as guaranteed by the Fourteenth Amendment. Complaint ¶¶ 39-41. Specifically, Plaintiffs maintain that Defendants enforced the Town's Building Code in an arbitrary, capricious and unreasonable manner based on Plaintiffs' religion and the race of the Fellowship's membership, Anzdel Affidavit ¶ 6, which, according to Plaintiffs, is comprised of a large number of minorities, and that Defendants imposed requirements upon Plaintiffs beyond "those enumerated in the ordinances." Complaint ¶¶ 40-42. Plaintiffs assert that such unequal enforcement directly interfered with Plaintiffs' right to the free exercise of their religion, speech and association. Id. ¶ 43.

Liability under § 1983 based on a claim of selective prosecution "should depend on proof that (1) the person, compared with others similarly situated, was selectively treated; and (2) that such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injury a person." LeClair v. Saunders, 627 F.2d 606, 609-10 (2d Cir. 1980) (rejecting selective enforcement claim based on state inspector's suspension of dairy shipping permit because of plaintiff's inadequate water supplies where plaintiff asserted ten other farms with similar problems had been approved absent evidence of inspector's malicious intent toward plaintiffs). Further, as the Supreme Court more recently stated in connection with the use of the selective prosecution defense in a criminal case

[t]he requirements for a selective-prosecution claim draw on ordinary equal protection standards. The claimant must demonstrate that the federal prosecutorial policy had a discriminatory effect in a race case, the claimant must show that similarly situated individuals of a different race were not prosecuted.

United States v. Armstrong, 517 U.S. 456, 465 (1996) (internal citations and quotations omitted).

See also Lisa's Party City, Inc. v. Town of Henrietta, 185 F.3d 12, 15-17 (2d Cir. 1999) (failure to show material deviation from neutral enforcement of sign uniformity ordinance fatal to plaintiff's § 1983 equal protection claim); Zahra v. Town of Southold, 48 F.3d 674, 683 (2d Cir. 1995) (finding equal protection violation where enforcement based on purpose to punish to inhibit exercise of constitutional rights, or by malicious or bad faith intent to injure plaintiff). However, the "[m]ere failure to prosecute other offenders is not a basis for a finding of denial of equal protection." LaTrieste Restaurant and Cabaret, Inc. v. Village of Port Chester, 188 F.3d 65, 70 (2d Cir. 1999) (quoting LeClair, supra, 627 F.2d at 608). Rather, "selective prosecution implies that a selection has taken place." Id. (internal quotations omitted). Without, therefore, a showing that Defendants were aware of similar Town ordinance violations and that enforcement against Plaintiffs resulted from official targeting of Plaintiffs' violations solely for impermissible reasons, as articulated in LeClair, supra, Plaintiffs cannot prevail. See LaTrieste, supra, 188 F.3d at 70.

In the instant case, Plaintiffs have failed to submit any evidence establishing the first prong of their equal protection claim, i.e., that the Tree Preservation Ordinance was enforced against Plaintiffs, but not against other similarly situated individuals or groups who also may have violated the Tree Preservation Ordinance and of which Defendants were aware when they enforced the ordinance against Plaintiffs. Plaintiffs submit in support of their equal protection claim (i) the discriminatory statements allegedly made by Defendant Conway in connection with the Fellowship's 1995 application for a property tax exemption, Plaintiffs' Memorandum at 5-6 and 8-9; (ii) supposed actions against Plaintiffs in connection with Plaintiffs efforts to improve the property at 3125 Genesee by Town Councilman Johnson and Defendants Marten and Ulatowski which Plaintiffs assert were taken for discriminatory reasons, id. at 8-9; (iii) Defendant Ulatowski's statement that his coworkers refer to him as a "church harasser," id. at 6 9; (iv) the Town's failure to enforce a Town sign ordinance against Richard Cartwright, a Clover Place resident who made several complaints against the Fellowship and signed the affidavit which provided the basis for the Town's criminal action against Grant, id. at 9; and (v) the Town's failure to take action against a local paving company which, while working on a street widening project adjacent to the Fellowship's property on Genesee Street, allegedly exceeded the scope of the project as authorized by agreement with the New York State Department of Transportation, a state agency responsible for the project, by depositing debris on the Fellowship's property.⁶⁷ Id. at 9-13. None of this evidence, however, establishes that the Tree Preservation Ordinance, or other Town Building Code and Zoning Ordinance provisions, were selectively enforced against Plaintiffs based on race,⁶⁸ religion,⁶⁹ or other improper motives. LeClair, supra, 627 F.2d at 609. Additionally, Plaintiffs' evidence also fails to raise a triable issue as to whether Plaintiffs are similarly situated with any of these alleged violators either as to the particular nature of the alleged unprosecuted violations or the underlying relevant facts demonstrating Plaintiffs were similarly situated and of which Defendants can be shown to have had prior knowledge, as required. See Armstrong, supra, 517 U.S. at 465; LeClair, supra, 627 F.2d at 609-10. See also Gagliardi v. Village of Pawling, 18 F.3d 188, 193 (2d Cir. 1994) (failure to allege that defendant would have taken enforcement action at the request of other similarly situated to plaintiff but not plaintiff fatal to plaintiff's equal protection violation claim).

67 Although not specifically pleaded in the Complaint, Plaintiffs also point to Marten's requirements that the Fellowship provide the Town prior notice of any planned tree cutting to assure compliance with the Tree Preservation Ordinance's requirements and the limitation of cutting to "fallen dead trees." Grant Affidavit ¶¶ 18, 24.

68 There is no allegation or evidence regarding the race of either Plaintiff Andzel or Grant. As neither Andzel nor the Fellowship was subject to the criminal proceedings initiated by the Town for violations of the Tree Preservation Ordinance, both lack standing to pursue Plaintiffs' Equal Protection claim on this bas is.

69 As discussed, Discussion, supra, at 56, no evidence indicates the nature of Plaintiffs' religious beliefs or that Defendants were aware of them before taking the actions complained of against Plaintiffs.

Plaintiffs contend that Conway, during meetings with Andzel and Mrs. Andzel in 1995, in connection with the Fellowship's request for a local property tax exemption on the property at 3125 Genesee Street, acquired in 1994, inquired of Andzel, "what do you people want from us," and stated that "we did not know who you are" and "we don't want you here," Andzel Affidavit ¶ 7, and that such comments connote a discriminatory animus based on the Fellowship's religious beliefs and the predominately minority makeup of its congregation. Id. ¶ 2, 11. As such statements, even if made by Conway, are irrelevant to Plaintiffs' selective prosecution claim, they cannot avoid summary judgment as to Plaintiffs' Third Cause of Action.

First, assuming, arguendo, that Conway made the statements, nothing in the record demonstrates that Conway was in any way involved in the enforcement of the Town Tree Preservation Ordinance, Town's Building Code, or Zoning Ordinance which Plaintiffs assert were discriminatorily enforced against them by Defendants Marten and Ulatowski, non-parties Johnson, Papero, Mueller, and unidentified members of the Town Police Department. In fact, although Conway is named and identified as a Defendant by the Complaint, the Complaint is otherwise devoid of any factual allegations that could conceivably be the basis for any § 1983 liability against Conway. See Complaint, passim. Indeed, prior to the filing of Plaintiffs' papers in opposition to summary judgment, the sole allegation in the record involving Conway consisted of statements in paragraph 12 of the Complaint generally identifying Conway as the Town Assessor and asserting that "Mr. Conway is an agent of the Town and operates under and pursuant to the laws, ordinances, policies and practices of the Town. . . . [and that] Mr. Conway personally participated in the process that led to the Plaintiff's [ sic] injuries herein." Complaint ¶ 12.⁷⁰ Assuming the alleged "process" to which Plaintiffs refer includes the enforcement actions taken by Ulatowski and Marten based on Plaintiffs' violations of the Tree Preservation Ordinance, (a reasonable assumption given that the gist of Plaintiffs' grievances against Defendants arises primarily from such alleged violations), no facts connecting Conway to enforcement of the ordinance, or other Town laws, against Plaintiffs are stated by Plaintiffs nor, based on the record on the instant motion, has any such information been adduced through discovery. Plaintiffs also have not established any connection between Conway's position as Town Assessor and the Town Building Department's decision to enforce the Tree Preservation Ordinance against the Fellowship.⁷¹ Nor do Plaintiffs offer any evidence showing Conway's personal involvement in the handling of resident complaints by Councilman Johnson, the conduct of Michael Papero in inspecting the dead trees on the property, or the actions of Officer Mueller in serving the summons on Grant.

70 As discussed, Discussion, supra, at 98, such generalized allegations are legally insufficient to establish the personal involvement as required to defeat summary judgment.

71 CCAC chairman John Marriott's memorandum to Conway, dated February 8, 1996, summarizes Marriott's recollection of discussions with David Abbatoy, Grant's predecessor, in March 1995 relative to the Fellowship's intention, as stated by Abbatoy to Marriott at that time, to engage in tree thinning on the Fellowship's recently acquired 3125 Genesee Street property. Although Ulatowski was copied on the memorandum, there is no indication that Conway in any way became involved in the initial approvals for improvements to the site granted by Marten in June 1996, Defendants' Exhibit H, Ulatowski's stop work orders of Plaintiffs' improvement work at the site beginning in July 1997, or the decision by Marten and Ulatowski to file charges against Grant. Plaintiffs' questioning of Conway at his deposition in relationship to Ulatowski showed only that Conway had consulted with Ulatowski regarding Plaintiffs' intended use for the 3125 Genesee Street site, based on the Fellowship's submissions or alleged "site plan" to assist Conway in determining whether the property was entitled to a tax exemption based on its asserted exclusive use for religious purposes by the Fellowship. Conway Deposition at 60-63. Plaintiffs do not contend otherwise. Other than a possible inquiry from Conway to the Building Department to ascertain how the property was being used by the Fellowship, Marten was aware of no other connection with Conway in relation to Plaintiff. Marten Deposition at 26-27.

Second, as framed by Plaintiffs, the Complaint's selective prosecution claim, its Third Cause of Action, is limited to Defendants' conduct in the enforcement of the Town's "building code regulations." Complaint ¶ 40 (alleging Defendants violated Plaintiffs' equal protection rights "by enforcing [Town] building code regulations in an arbitrary, capricious and unreasonable manner. . . ."). However, the facts cited in support of the Third Cause of Action, Complaint ¶ 39, referring to such conduct by Defendants, Complaint ¶¶ 1-38, as noted, fail to describe any facts upon which a finding of actionable misconduct may be attributed to Conway as administering the criteria for tax exemptions based on religious use. It is basic § 1983 law that relief may not be granted against a Defendant unless personal involvement is alleged. McKinnon, supra, 568 F.2d at 934. Therefore, as no personal involvement by Conway has been alleged, or established by any evidence adduced through discovery, to have caused a violation of Plaintiffs' Equal Protection Clause rights arising from enforcement of the Town Building Code, summary judgment against Plaintiffs on their Third Cause of Action against Conway should be GRANTED. Further, as Plaintiffs do not enjoy a constitutionally protected right to the tax exemptions sought from Conway, Discussion, supra, at 90-91, any statements made by Defendant Conway or his failure to support Plaintiffs' request for a tax exemption in connection with Plaintiffs' 1995 property tax exemption application, are irrelevant to Plaintiffs' selective enforcement claim based on considerations of religion or race that did not commence, according to Plaintiffs, until 1997. It is undisputed that Plaintiffs' assert no violations of their Equal Protection rights in connection with the Town's denial of the Fellowship's tax exemption requests.⁷²

72 The court notes that while Conway's denial of Plaintiff's tax exemption request initially succeeded, Grant Affidavit ¶ 4, by subsequent decision of New York Supreme Court, the Fellowship eventually received a tax exemption for the years 1998 and 1999. Raum Declaration Exhibit 9.

Plaintiffs' theory, unpleaded by the Complaint, that Defendants imposed burdensome restrictions upon them not authorized by the Tree Preservation Ordinance is also without merit. Raum Certification ¶ 35. Contrary to Plaintiffs' belief, the Tree Preservation Ordinance, by its terms, authorizes the Town Building Department to require that an applicant for a tree removal permit cooperate in the Town's inspection of the proposed trees to be removed, pursuant to an issued permit, to assure compliance with the approved plan, and that no tree cutting may take place until "a representative from the Town Building Department has completed his final inspection and given his final approval." Town Tree Preservation Ordinance, Town of Cheektowaga Local Law No. 7 (1992) Section 6, Defendants' Exhibit E at 3. The ordinance does not mandate that such requirement appear in of the permit or the approval of an application for a permit. Id. Thus, there is no support in the text of the ordinance itself for Plaintiffs' claim that Marten's requirements that Plaintiffs (i) accept Papero's inspection and markings of the trees to be cut by the Fellowship at the site, and (ii) give the Town prior notice to provide an opportunity to assure compliance with the permit and ordinance, somehow singled Plaintiffs out for special treatment by imposing requirements not contemplated by the ordinance. As noted, Plaintiffs do not attack the Tree Preservation Ordinance as being unconstitutionally targeted at them based on considerations of religion or race. Moreover, Plaintiffs provide no evidence suggesting that in all of the cases where prior tree removal permits were approved by the Town, the Town never imposed the inspection and oversight requirements contemplated by Section 6 of the Tree Preservation Ordinance.⁷³

73 The record contains no information as to the number of permits issued, with or without such conditions, under the Tree Preservation Ordinance, however, Marten estimated that the Town had prior to the charges filed against Grant, commenced prosecution under the ordinance in approximately six cases. Marten Deposition at 18-19.

Plaintiffs further argue that conduct they attribute to Town Councilman Tom Johnson in connection with the Town's enforcement of the Tree Preservation Ordinance against the Fellowship shows a discriminatory intent that should be attributed to Defendant Town. Plaintiffs' Memorandum at 20 ("[T]he Town Board, acting through its board member Thomas Johnson and at the behest of religiously and racially hostile neighbors, directed an ongoing campaign of harassment against the . . . [Fellowship].") Specifically, Plaintiffs assert that by visiting the site to inspect for Town ordinance violations, Raum Certification at 16-27; Grant Affidavit ¶ 33, monitoring Ulatowski's enforcement activities against the Fellowship, and ordering Town police to stop Plaintiffs' cleanup work, id., ¶¶ 71-72, Johnson's official activities in regard to the property "caus[ed] the . . . [Fellowship] great concern." Grant Affidavit ¶ 33. Even if true, these assertions fail to establish that the actions taken by Johnson resulted in any injuries to Plaintiffs' constitutional rights. As discussed, Discussion, supra, at 78-85, there is no evidence that Plaintiffs' religious activities were inhibited or limited, that the Fellowship experienced any loss of members or financial harm as a result of Johnson's actions, or that Plaintiffs' right to free speech and association were encumbered. More relevantly, none of Johnson's actions have been shown by Plaintiffs to have resulted in the Town's enforcement decisions affecting Plaintiffs. For example, while Johnson responded to a series of resident complaints regarding the tree removal at the site, no evidence remotely suggests Marten's and Ulatowski's decision to charge Grant with Tree Preservation Ordinance violations.

Plaintiffs' further assertion that Johnson's and Ulatowski's conduct, as described in the Raum Declaration and Grant Affidavit, demonstrates that the Town acted on behalf of area residents "who have demonstrated hostility and prejudice toward the Church and its members," is without evidentiary support. In particular, none of the evidence documenting Johnson's involvement with this matter manifests any racial or religious bias toward Plaintiffs. See, e.g., Plaintiffs' Exhibits 16, 20 and 23; Defendants' Exhibits Y, Z, AA, and CC. Rather, the statements and actions of Johnson, as reflected in the record, show only an intention by Johnson to assure local residents that Plaintiffs complied with the Tree Preservation Ordinance and related ordinances, not to interfere with Plaintiffs' constitutional rights as alleged in this case. Id. In particular, the singular statement manifesting an overt racial or religious bias on anyone' part is that made, according to Plaintiffs, by Mrs. Cartwright to Andzel on December 15, 2001, Plaintiffs' Exhibit 34, Grant Affidavit ¶ 47, over three yearsafter Johnson was informed of Mrs. Cartwright's complaints regarding possible Town ordinance violations on September 2, 1998. Plaintiffs' Exhibit 16. Thus, even if Mrs. Cartwright harbored the racial and religious bias toward Plaintiffs, as arguably reflected in her alleged statements to Andzel in December 2001, no admissible evidence supports the notion that Johnson was aware of the statement, ever condoned Mrs. Cartwright's opinions or officially acted upon such prejudices against Plaintiffs, or that Mrs. Cartwright or any other local resident ever expressed such biases to Johnson in relation to Plaintiffs. In any event, Plaintiffs make no effort to demonstrate, other than Plaintiffs' counsel's bald unsupported assertions, Plaintiffs' Memorandum at 20; Raum Declaration at 16-17, that Johnson acted on behalf of the Town Board in attempting to assure resident neighbors of the Fellowship property that applicable Town ordinances were being complied with in regard to the Fellowship's improvements to 3125 Genesee Street. On this record, the court concludes that no reasonable juror could find otherwise.

Nor have Plaintiffs established any factual connection between Defendant Ulatowski's nickname as the "church harasser" and the enforcement of the tree ordinance against the Fellowship. In fact, Ulatowski testified at his deposition that his job duties, in the past, had also compelled him to file a criminal complaint alleging a violation of the Town's Zoning Ordinance against a deacon of his own parish, Most Holy Redeemer Roman Catholic Church, also located on Genesee Street in Cheektowaga. Ulatowski Deposition at 54-55.⁷⁴ Ulatowski's deposition testimony on this point, the accuracy of which Plaintiffs do not challenge, demonstrates, if anything, that Ulatowski enforced the Town's ordinances (albeit apparently, in this instance, not the Tree Preservation Ordinance) against at least one other religious organization located in the Town of which, coincidently, Ulatowski is a member. Hence, even assuming fellow employees had nicknamed him the "church harasser," such fact cannot be reasonably understood to mean that Ulatowski actually was hostile toward religious organizations including the Fellowship. Although, together with Ulatowski's enforcement actions against the Fellowship, the nickname, if taken out of the context in which it was given may, as Plaintiffs maintain, constitute some evidence of religious antipathy, nevertheless, given the absence of evidence that Ulatowski was, prior to any Defendant's enforcement actions at issue, aware of Plaintiffs' religious beliefs or the racial makeup of the Fellowship's congregation, such evidence is simply too insubstantial to rationally support a finding that Ulatowski actually intended to discriminate against Plaintiffs based on their religious beliefs or the race of the Fellowship's members.⁷⁵ As such, the fact of Ulatowski's workplace nickname does not require trial on Plaintiffs' Equal Protection claim of selective enforcement.⁷⁶

74 The violation was based on improper use of property subject to a lease agreement between Most Holy Redeemer Roman Catholic Church and Trinity Episcopal Church of Lancaster, New York. Id. at 66.

75 Ulatowski and Johnson were both invited by Grant to attend an outdoor prayer service sponsored by Plaintiffs on September 17, 1998, prior to the decision to prosecute Grant. Plaintiffs' Exhibit 18 and 19. In the invitation, Grant made reference to the disciple Timothy's "instructions" to Christians to pray for those in authority. Id. However, on their part, even assuming Plaintiffs thereby intended to communicate to Ulatowski and Johnson an adherence to Christianity, given it cannot be disputed that Ulatowski, as a Catholic, also was a Christian, it is implausible that Ulatowski intended to discriminate against Plaintiffs based on his awareness, as implied by sending the invitation, that Plaintiffs may also consider themselves Christians.

76 Plaintiffs also claim they were the object of racial epithets and random vandalism and harassment by unidentified persons but, contrary to Plaintiffs' allegations in the Complaint ¶ 20 c., could not attribute such alleged misconduct to Defendants. Andzel Deposition at 50. When asked if Andzel had any evidence that these acts of criminal mischief was caused by any Town official or employee, Andzel avoided a direct answer referring instead to a communication Johnson had sent to residents to report any attempt by the Fellowship to use the property. However, Plaintiffs were unable to produce a copy of the alleged communication in response to defense counsel's request. Id.

Plaintiffs' contention that Cartwright's front yard sign display violated the Town's sign regulations and the Town's failure to enforce the Town's sign regulations against Cartwright does not demonstrate that the Tree Preservation Ordinance was enforced against Plaintiffs on impermissible grounds of religion or race. Rather, that Grant was charged with violating the Tree Preservation Ordinance while Cartwright was not charged with violating the Town's sign ordinance merely underscores the absence of any relevant similarity between Plaintiffs' and Cartwright's circumstances respecting violations of Town ordinances. As such, Cartwright's violation of the Town's sign ordinance if in fact there was a violation, as relied upon by Plaintiffs to support Plaintiffs' discriminatory enforcement claims, provides no support for Plaintiffs' Third Cause of Action sufficient to avoid summary judgment. See Armstrong, supra, 517 U.S. at 465; LaTrieste, supra, 188 F.3d at 70; LeClair, supra, 627 F.2d at 609. Simply, Plaintiffs are unable to show that other violators of the Tree Preservation Ordinance, of which Defendants were then aware, were not prosecuted, while Grant was thereafter prosecuted and for prohibited reasons.

Finally, there is no merit to Plaintiffs' assertion that the Town's failure to take action against a local paving company, Hartford Paving ("Hartford"), for allegedly exceeding the New York State Department of Transportation's ("DOT") authorized scope of a street widening project adjacent to the Fellowship's property on Genesee Street and by unlawfully depositing debris on the Fellowship's property, constitutes evidence of Plaintiffs' equal protection claim. As with Cartwright's alleged sign ordinance violation, Hartford's asserted violation of the DOT's agreement with Hartford, including the depositing of debris on the Fellowship's property, does not constitute a violation of the Tree Preservation Ordinance and, as such, Hartford is not, based on the presented violations of the DOT agreement, similarly situated to Plaintiffs' threshold requirement Plaintiffs' Equal Protection Clause claim. Hence, Hartford alleged violations which, assuming their truth, also occurred well after the events at issue in this lawsuit, are not probative of Plaintiffs' selective enforcement claim.⁷⁷ Accordingly, the first legal criteria applicable to Plaintiffs' selective enforcement claim as to Grant's prosecution, i.e., that Grant is similarly situated to one not prosecuted by Defendants, and such fact was known to Defendants at the time, has not been met and, as such, the Town's failure to take any action against Hartford cannot support a finding for selective enforcement of the Tree Preservation Ordinance against Grant. Similarly, the Defendants other enforcement decisions against Plaintiff under the Tree Preservation Ordinance are not shown to have been deferred by Defendants as to violations committed by similarly situated persons or organizations, including Hartford's alleged violations.

77 Hartford's street widening project was carried out in the spring of 2000, Raum Certification ¶¶ 66-68; Plaintiffs' Exhibit 31, well after the relevant actions by Defendants which took place between 1995 and 1998.

Additionally, as discussed in connection with the question of Plaintiffs' standing, Discussion, supra, at 44-46, because the criminal charges for violation of the Tree Preservation Ordinance resulted in an adjournment in contemplation of dismissal, a disposition available under New York Criminal Procedure Law § 170.55, there has been no adjudication relating to Grant's guilt for violating the ordinance, thus defeating the prerequisite for § 1983 liability on Plaintiffs' equal protection claim based on Defendants' alleged discriminatory enforcement.⁷⁸ Singleton, supra, 632 F.2d at 192-93, 195.

78 As noted, Discussion, supra, at 44 n. 35, because as neither the Fellowship nor Andzel were subject to the Town's criminal proceeding against Grant, neither have standing to raise the Equal Protection Clause claim based on the Town's alleged selective enforcement of the Tree Preservation Ordinance.

7. Liability of Defendant Town ⁷⁹

79 As discussed, Discussion, supra, at 54 n. 39, although the court has recommended that Plaintiffs' allegations against the Town Board of Assessment Review are, for Monell purposes, actually claims against the Town, as the Board is not sufficiently separate from the Town to be sued in its own capacity, the court nevertheless analyzes such claims against the Board as a separate defendant in the event the District Judge disagrees with such recommendation. Accordingly, the court also analyzes, under Monell principles, the Board's potential liability with Plaintiffs' claims against the Town.

In addition to claiming against the named individual Defendants and the Board of Assessment Review, Plaintiffs also accuse the Town, a municipality, of abridging their First and Fourteenth Amendment rights, and Plaintiffs' corresponding state constitutional rights as alleged in Plaintiffs' seven causes of action. Complaint ¶ 1, 2, 10, 32, 49. Although the Complaint fails to specifically assert in each cause of action that the Town caused injury to each of Plaintiffs' federal and state constitutional rights through the actions of any individual Defendants or other persons, particularly Johnson, Papero and Mueller, as a result of a municipal policy and practice, because Plaintiffs allege generally that the Town, through its "officials, agents and employees," "engag[ed] in a course of conduct, practice and policy designed to . . . chill, deter, prevent, and inhibit the [Fellowship's]" exercise of its constitutional rights, Complaint ¶ 18, the court, consistent with its obligation to construe federal civil rights complaints liberally, City of New York, supra, 359 F.3d at 91, will consider Plaintiffs' claims against the Town as based on an official policy or custom, as Plaintiffs' asserted, and required for municipal liability under § 1983. Monell, supra, 436 U.S. at 690.

Liability for § 1983 purposes may be imposed on a municipality where the unconstitutional actions are taken arising from a policy, ordinance, regulation or decision "officially adopted and promulgated" by municipal officers. Monell, 436 U.S. at 690. Additionally, permanent or well settled practices of local governmental officers constituting a "custom or usage" and having "the force of law" are also sufficient as a predicate for § 1983 liability. Id. at 691. The acquiescence by an authorized municipal policymaker in the discretionary actions of a subordinate which cause the constitutional violation equally suffices to establish municipal liability as an official policy or custom and practice if the policymaker has knowledge of the conduct and either approves the conduct or, with deliberate indifference to the foreseeable consequences of the conduct, fails to act to prevent the ensuing violation. Amnesty America, supra, 361 F.3d at 126-27. Even a single instance of such deliberate indifference may impose liability. Amnesty America, supra, 361 F.3d at 126; Jeffes, supra, 208 F.3d at 63. However, to impose § 1983 liability upon a municipality based on the theory, as set forth in the Complaint, that such customs and practices are tantamount to an official policy, the approval or acquiescence required to impose liability upon the municipality must be attributable to an official having "final authority to establish municipal policy with respect to the action ordered." Pembaur, supra, 475 U.S. at 481. Whether the accused official has such authority is determined under state law by the court. Jett, supra, 491 U.S. at 737. Finally, while § 1983 liability normally requires the individual culpability of a person, acting under color of state law, and sued in the action, where the liability is sought to be imposed against a municipality is predicated on the conduct of persons acting as agents or employees of the municipality, or otherwise, acting under color of law, such persons need not be named as defendants in the complaint. Barrett v. Orange County Human Rights Commission, 194 F.3d 341, 350 (2d Cir. 1999) (holding municipal liability for constitutional injuries may be found to exist in the absence of individual liability as to any of the named defendants, provided the injuries complained of are not solely attributable to the named individual defendants).

In this case, reading the Complaint liberally and as a whole, Plaintiffs assert that the Town is liable for each of the alleged constitutional violations because (1) the Board and Conway denied the Plaintiffs their requested tax exemptions thereby interfering with Plaintiffs' use of Fellowship property for religious purposes, (2) Marten and Ulatowski imposed unauthorized requirements for Plaintiffs' planned improvements to Fellowship property, including dead tree removal, based on discriminatory motives, (3) Marten and Ulatowski authorized or directed Papero's disruption of Plaintiffs' religious services, (4) Marten and Ulatowski prosecuted Grant for discriminatory reasons, (5) Marten and Ulatowski authorized or approved Mueller's disruption of a Fellowship sponsored religious program, and (6) the individual Defendants and others both known, such as Johnson, and unknown to Plaintiffs created a public climate of religious and racial animosity toward the Fellowship for the purpose of harassing and driving the Fellowship from the Town. Complaint ¶¶ 12, 20c.

In support of their request for summary judgment, Defendants primarily argue that Plaintiffs adduced no evidence that the Town's ordinances were enforced against Plaintiffs except as generally applicable ordinances, neutral as to Plaintiffs' religion or race, and that any adverse impact on Plaintiffs' right to religious free exercise was incidental to Defendants' neutral enforcement and therefore not actionable under § 1983. Defendants' Memorandum at 13-14. Defendants specifically contend, relying on Pickering v. Bd of Education, 391 U.S. 563 (1968), that Plaintiffs' free speech claim is insufficient as a matter of law as Plaintiffs failed to particularize that the relevant speech Defendants interfered with pertained to matters of public concern. Id. at 18. However, the issue in Pickering was the extent of free speech protection available to public employees. Pickering, supra, 391 U.S. at 568. As neither Andzel nor Grant are public employees, the "public concern" test, established by Pickering as the criterion for protectible speech under the Free Speech Clause by a public employee, is irrelevant to this case. Defendants further maintain that the record reveals no evidence that Plaintiffs were unable to practice their religion, or to engage in free speech and free association, religiously related or otherwise, despite Plaintiffs' allegations of harassment, intimidation or discrimination by Defendants and the named, and unnamed, nonparties inspired by Defendants' conduct. Defendants' Memorandum at 17, 20. Finally, Defendants argue that no evidence in the record supports Plaintiffs' conclusion that the Town's ordinances were enforced against them for improper motives. Defendants' Memorandum at 21. "Plaintiffs . . . failed to show . . . that defendants had the requisite scienter ( i.e., malice or bad faith) or that any treatment was based on impermissible considerations. . . ." Id.

As to the question of the Town's liability, Defendants maintain that because the available evidence fails to show a triable issue of fact demonstrating any violation of a constitutional right enjoyed by Plaintiffs, no liability against the Town can be predicated upon the existence of a municipal policy or practice as required by Monell. Defendants' Memorandum at 28-29; Defendants' Memorandum of Law in Further Support of Motion at 14-15. In opposition, Plaintiffs contend that Conway's alleged discriminatory comments to the Andzels in 1995 as well as Ulatowski's "admission" in 1997, that Ulatowski was a "church harasser" constitute sufficient evidence to defeat summary judgment in favor of the Town on this issue. Plaintiffs' Memorandum at 5-6.

Because Plaintiffs rely specifically on the statements and actions of Conway, Marten, Ulatowski, Papero, Mueller and Johnson to defeat summary judgment regarding the Town's potential liability, it is necessary to determine whether, under state law, these Town officials and employees qualify as final policymakers for the purpose of predicating § 1983 liability against the Town consistent with the requirements of Monell. Under New York law, a first-class town like Cheektowaga has an elected town supervisor and town board. N.Y. Town Law § 20(a).⁸⁰, ⁸¹ As a first-class town, the Cheektowaga town board is made up of six council members, N.Y. Town Law § 20(a), and includes the town supervisor. Id. § 60[1]. The town supervisor has several stated statutory powers and may be granted additional powers pursuant to resolutions of the town board. Id. § 29[16]. Town boards and town supervisors are considered municipal policy makers for purposes of imposing § 1983 liability against a town. See Glenview Const., Inc. v. Bucci, 165 F.Supp.2d 545, 552 (S.D.N.Y. 2001) (town supervisor held under Town Law § 29 to be a final policymaker in § 1983 action against town).

80 Although neither party has discussed the point, the court takes judicial notice, Fed.R.Evid. 201(b) (court may take notice of facts "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned"), that Cheektowaga is a first-class town as defined by New York law. N.Y. Town Law § 10 (McKinney 2004) (towns of 10,000 or more in population are considered as towns of the first class for Town Law Article 2 purposes). According to the 2000 census, Cheektowaga had a population of 94,019.

81 Unless otherwise indicated, references to N.Y. Town Law are to "McKinney 2004."

Regarding Conway, New York law requires that as a first class town, the Town's officers shall include a town assessor appointed by the Town board. N.Y. Town Law § 20(a). The powers and duties of a town assessor are found in the New York Real Property Tax Law Articles 1-6, and include the authority to grant to a religious organization an exemption from real property taxes provided for in N.Y. Real Prop. Tax Law § 420-a [1](a).⁸²

82 Contrary to Plaintiffs' allegations that the Town delegated to the Board and Conway its authority to make assessments and grant exemptions, Complaint ¶ 10, and that the Board acted under authority of the Town, in point of law, both Conway, as Town Assessor, and the Board, while appointed by the Town, N.Y. Real Prop. Tax Law § 523[1.](a)-(b), act under specific authority granted by state law. See N.Y. Real Prop. Tax Law §§ 102[2], [4]; 420-a[1](a). Under New York law, the procedures and authority for assessing the value of real property subject to local real property taxes, levying of local real property taxes and granting exemptions therefrom are also governed solely by state law, not local municipal ordinances. See Cody, Inc. v. Town of Woodbury, 8 F.Supp.2d 340, 341-42 (S.D.N.Y. 1998) (holding that under New York law, property owners dissatisfied with initial determination as to valuation or exempt status of property should challenge such determination by special proceeding under Article 7 of New York Real Property Tax La w).

Applicable state law requires the establishment of in each town a Board of Assessment Review appointed by the town board. N.Y. Real Prop. Tax Law § 523-a[1] (a)-(b). The board is mandated to hear taxpayer complaints regarding property assessments made by the town assessor and establish the final assessment of the tax payer's property for the levying of local real property taxes covered by the complaint. Id. § 523-a[5]. The board determines complaints as to the assessed value of property within the township and whether the town assessor's determination of an assessment is "unlawful," i.e., whether an exemption should be granted, id. § 524[2], as well as whether the town assessor's denial of a claimed real property tax exemption was proper. Lamos v. Board of Assessment Review of Town of Argyle, 599 N.Y.S. 2d 886, 887 (3d Dep't 1993). Defendants do not contest that the Board is authorized to determine complaints regarding Conway's refusal to grant a tax exemption to the Fellowship's property. See Answer ¶¶ 11-12.

Based on its review of the applicable New York law, the court finds the office of town assessor and the board of assessment review constitute public offices with final policymaking authority for the Town. There are fewer municipal powers more potent than the authority to assess the value of real property, located within its taxing authority, for purposes of imposing local real property taxes, and to grant or deny requested exemptions from such taxes. See Town of Orangetown v. Magee, 665 N.E.2d 1061, 1067-68 (N.Y. 1996) (town building inspector held final decisionmaker for purposes of § 1983 liability based on inspector's power to revoke building permit). In this case, the broad authority of the Board of Assessment Review, granted under state law to modify decisions of the Town Assessor in regard to such matters, confirms the Board equally is a final decisionmaker for the purposes of grounding § 1983 liability against the Town as required by Monell and its progeny.

Regarding Ulatowski's status as a final policymaker for the Town, it has been held that a town building inspector in New York state may be a final municipal policymaker for § 1983 purposes if the decision or action of the building inspector causing the alleged constitutional injury is found, under relevant local law, to result from the inspector's final authority to make such a decision or take such action, regardless of the opportunity under local law for review by a town zoning board. Magee, supra, 665 N.E.2d at 1067-68 (building inspector's revocation of permit to improve cross-plaintiff's real property under cross-defendant town's zoning ordinance, constituted "final decision of the Town" for purposes of § 1983 counterclaim regardless of potential review over such revocation by town zoning board).

Here, the Tree Preservation Ordinance specifically states that it is "administered and enforced by the Town Building Inspector." Town of Cheektowaga 1992 Local Law, Section A, Defendants' Exhibit E at 4. The ordinance provides that violations of its provisions may be prosecuted as criminal offenses for which violators may be fined up to $500 and imprisoned for up to 15 days. Id.; Section 8A. State law specifically allows a town to enact criminal penalties for violation of its ordinances which may constitute misdemeanors or offenses, but are prosecuted as misdemeanors pursuant to New York law. N.Y. Town Law § 135. See also N.Y. Town Law § 138 (town building inspector authorized to enforce, inter alia, town's building code and zoning ordinances). Thus, as the Town has by ordinance delegated to its Building Inspector, Ulatowski, sole responsibility for enforcement of the Tree Preservation Ordinance, it follows that Ulatowski is a final policymaker and his actions in furtherance of such authority constitute municipal policy upon which § 1983 liability against the Town may be imposed under the Monell doctrine. See Magee, supra, 665 N.E.2d at 1068. Nor does the fact that, pursuant Section 4 of the Tree Preservation Ordinance, an aggrieved party may appeal to the Town Board a denial of a requested tree removal permit by the Town Building Inspector avoid this conclusion.

The right of appeal such decision to the Town Board does not displace the Town's § 1983 liability based on Ulatowski's enforcement actions because Plaintiffs were not denied a permit, thus rendering the right to an administrative appeal to the Town Board irrelevant. Moreover, Section 7A's delegation to the Town Building Inspector of sole administrative responsibility for enforcement of "[t]he provisions of this [the Tree Preservation Ordinance] law" does not exclude authority to bring criminal proceedings against a violator. See Patsy v. Florida Bd of Regents, 457 U.S. 496, 516 (1982) (exhaustion of administrative remedies not a prerequisite to suit under § 1983); Magee, supra, 665 N.E.2d at 1067 (citing Patsy, supra). Defendant Ulatowski does not controvert that in his official capacity he conducted his official duties in accordance with the Town's "ordinances." Complaint ¶ 14; Answer ¶ 14.

Additionally, under New York law, a town board may authorize enforcement of any ordinance enacted under the authority of Article 16 of the New York Town Law ("Article 16") relating to the exercise of the zoning power by towns. See N.Y. Town Law § 261 (authorizing town boards to enact local laws or ordinances, inter alia, to "regulate . . . the . . . use of . . . land for trade, industry, residence, or other purposes."); Id. § 268[1] (authorizing the town board to provide for enforcement of any local law or ordinance adopted under authority of New York Town Law Article 16). As the Town, prior to the accused officials' actions in this case, had authorized, by the Tree Preservation Ordinance, Ulatowski as Town Building Inspector to enforce its provisions, the stop work orders and the decision to prosecute Grant were issued and made by Ulatowski as a final municipal policymaker for purposes of enforcement of the Tree Preservation Ordinance, and thus establish a basis for potential § 1983 municipal liability against the Town.

As Ulatowski's supervisor, Marten must also be found to be a final municipal decisionmaker for § 1983 municipal liability purposes as to questions of enforcement of the Town's Building Code and its Zoning Ordinances including the Tree Preservation Ordinance. Amnesty America, supra, 361 F.3d at 126 (recognizing that a superior's awareness of subordinate's unconstitutional conduct imposes municipal liability under Monell based on ratification or deliberate indifference). Here, Defendants do not dispute that Marten authorized Papero's inspection action as to the property, Marten Deposition at 27-29, as well as Ulatowski's decision to prosecute Grant. Id. at 17-18. However, no admissible evidence connects Marten or Ulatowski with the misconduct of Mueller, as asserted by Plaintiffs, nor with Johnson's surveillance of Plaintiffs' compliance with Town ordinances other than receiving reports of residents' complaints as referred to Marten by Johnson. See, e.g., Plaintiffs' Exhibit 16 (Memorandum to Marten from Johnson dated September 3, 1998 referring to resident complaints of tree cutting and burning at 3125 Genesee Street, received from Mrs. Cartwright and Mrs. Schuh, requesting that the Town Building Department investigate). Thus, if Ulatowski's conduct in issuing the stop work orders, requiring Plaintiffs submit (or, as Plaintiffs maintain, resubmit) their proposed improvement plans for the property for approval by the Town Planning Committee, and prosecuting Grant for infractions of the Tree Preservation Ordinance, violated Plaintiffs' First Amendment rights and the Equal Protection Clause's protection against selective enforcement and prosecution, may be found to result from the Town's municipal policy, made by Ulatowski, as the Town Building Inspector, and by Marten, as his supervisor, the actions of both official may impose potential § 1983 liability against the Town.

However, no liability against the Town can be predicated upon Johnson's actions. As an individual member of the board, Johnson's actions standing alone do not qualify as those of a final municipal policy decisionmaker. Here, as noted, Discussion, supra, at 132-33, the Town Board is made up of six members. Although actions by a town board are considered manifestations of final municipal policymaking, see Magee, supra, 665 N.E.2d at 1067-68, in the absence of actions taken by a majority of the board, N.Y. Town Law § 63 (requiring majority vote for any board action), no imposition of municipal liability for § 1983 purposes may be based upon the conduct of a single board member. See Coogan v. Smyers, 134 F.3d 479, 485 (2d Cir. 1998) (in order to impose § 1983 liability against seven member city council for wrongful politically based termination, if four of the seven members can establish permissible, in addition to impermissible political motives, for voting to terminate plaintiff, "neither the Council as a whole nor any of its members could be held liable, even if one more defendants fail to prove a legitimate reason."); Jeffries v. Harleston, 52 F.3d 9, 14 (2d Cir. 1995) (no § 1983 liability against university board of trustees where although 14 of board's 15 trustees voted to terminate plaintiff, only six acted with discriminatory motive such that eight member majority acted with permissible motive).

Plaintiffs fail to point to any evidence of specific authorizations or ratifications, implicating any other members of the six member Town Board in the actions of any of the individual Defendants, nonparties Papero, Mueller, Johnson, or any of the local residents identified by the parties in this case.⁸³ Accordingly, even if the trier of fact were to accept, as Plaintiffs' allege, that somehow Johnson encouraged residents to engage in acts of harassment against the Fellowship and its members based on religious and racial animosity, such fact would be, as a matter of law, an insufficient foundation upon which to cast the Town in § 1983 liability based on the actions of the only one member of the board, Johnson, who Plaintiffs claimed acted wrongfully against their constitutional rights. Id. Accordingly, it is unnecessary to further consider, for purposes of determining the merits of Defendants' motion for summary judgment in favor of the Town, Plaintiffs' unsupported accusations against Johnson.⁸⁴

83 No other Town Board members have been named as defendants in the case.

84 As Plaintiffs failed to name Johnson as an individual Defendant, the court need not further consider whether Johnson's conduct may be actionable under § 1983 for purposes of establishing his individual liability or that of the Town.

Further, although Andzel and Grant both described harassment by unknown persons directed at the Fellowship and its members in the form of alleged bomb threats, racial epithets, and documented acts of vandalism, Andzel Deposition at 50; Grant Deposition at 100-02; Plaintiffs' Exhibits 35 and 36, no evidence has been adduced by Plaintiffs linking any Board of Assessment Review members, Conway, Marten, Ulatowski or any Town Board members, including Johnson, to such harassment. Nor do Plaintiffs suggest that any individual Defendant, other unnamed persons participating under color of law, or the Town Board condoned such misconduct or somehow caused the Town Police Department to fail to adequately investigate and prosecute those acts of harassment as complained of by Plaintiffs. Indeed, there is no evidence showing that the Board, Conway, Marten or Ulatowski hold any final policymaking authority over the Town Police Department and, accordingly, no grounds exist to impute liability to the Town based on the failure of the Town Police Department to take more effective action in response to Plaintiffs' harassment complaints based on the status of these Defendants as final municipal policymaking. Plaintiffs submit no evidence that any Town official having final policymaking authority over police investigations, such as the Chief of Police, failed to act with deliberate indifference to the risk that Plaintiffs' constitutional rights would be violated if Plaintiffs' complaints were not fully and promptly investigated, nor has any police officer been identified by Plaintiffs as having violated Plaintiffs' rights by failing to take any requested investigative or enforcement actions.

Therefore, no legal or factual grounds exist to support Plaintiffs' asserted § 1983 liability against the Town on account of any failure to take police action against those responsible for the harassment. See Amnesty America, supra, 361 F.3d at 128 (lack of evidence of deliberate indifference by a municipal final policymaker fatal to § 1983 liability against municipality). As the Second Circuit stated, "[t]he inquiry is whether the facts suggest that the policymaker's action was the result of a 'conscious choice' rather than mere negligence." Id. (quoting City of Canton, supra, 489 U.S. at 389).

Additionally, as Plaintiffs have not attempted to allege that the unidentified officers violated Plaintiffs' constitutional rights by failing to pursue Plaintiffs' complaints about alleged crimes to which the Fellowship and some of its members may have been subjected, there is no legal basis upon which § 1983 liability may be imposed against the Town for failure to supervise such officers by officials with final decisionmaking authority. See Amnesty America, supra, 361 F.3d at 13 ("claim of inadequate . . . supervision under § 1983 cannot be made out against a supervisory body without a finding of a constitutional violation by the persons supervised") (citing Heller, supra, 475 U.S. at 799). Here, Plaintiffs made no effort to articulate, or plead, a constitutional violation committed by the Town Police Department with respect to Plaintiffs' harassment, threats, and vandalism claims. DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 201 (1989) (absent a special relationship, no 14^th Amendment Due Process Clause violation arises from state's failure to protect a person's constitutional liberty interest or property rights); Ying Jing Gan v. City of New York, 996 F.2d 522, 534-35 (2d Cir. 1993) (complainant who agreed to identify suspects was owed no duty of protection by city).

Plaintiffs do not identify the officers involved in the investigation of the incidents of harassment against the Fellowship and its members, nor do Plaintiffs allege how other Town officials may have failed to provide adequate supervision or direction of the police amounting to deliberate indifference to Plaintiffs' constitutional rights as alleged in the Complaint. Plaintiffs' reliance on the letter sent to the Town Police Chief Chamberlain and the copy of the crime report dated May 8, 2000 are, on their face, insufficient for this purpose. Plaintiffs' Exhibits 35 and 36, respectively. The letter (Defendants' Exhibit 5) from Ms. Sylka, a Fellowship administrator dated November 12, 1998 does not request a police investigation of the laser beam incident, rather, it seeks an explanation of the allegedly inconsistent advice given by the police department to the Fellowship as to the procedure for filing complaints in connection with the incident. Exhibit 36 is a copy of a report reflecting that Town police officers responded to a complaint on May 8, 2000 of potential harassment of Fellowship members by the family of a deceased person; its relevance is not otherwise explained by Plaintiffs.

The court also finds, based on the evidence in the record, or the lack thereof, summary judgment should be granted in favor of the Town based on the alleged conduct of the Board, Conway, Marten and Ulatowski, as final municipal decision makers, in relation to Plaintiffs' Free Exercise Claim. No evidence suggests that Papero's visits to the Fellowship or the allegedly objectionable manner in which Mueller served the criminal summons on Grant were directed, condoned or ratified by the Board, Conway, or Ulatowski. Indeed, Grant acknowledged that he could not recall having any contact with Conway (nor with the Board) regarding the dispute with the Town over the tree removal matter. Grant Deposition at 89. Although Andzel testified that Conway expressed displeasure to him and his wife with the Fellowship's presence in the Town, Andzel Deposition at 50, Andzel could not recall whether any Town official, Board member or employee had indicated the Fellowship's religious beliefs were "undesirable." Id. at 41. Andzel's statement is unsurprising inasmuch as the record fails to demonstrate precisely what Plaintiffs' religious beliefs are, Discussion, supra, at 64-74, or that Defendants had prior knowledge of Plaintiffs' beliefs and practices. However, Plaintiffs proffer no evidence suggesting Conway was personally involved in any of the actions Plaintiffs claim interfered with their religious liberty or that members of the Board had notice of such comments and condoned or ratified them. Plaintiffs do not allege that the Board has any supervisory responsibility for Conway's actions, other than to review his assessment and exemption decisions. Plaintiffs' generalized assertions of liability against each individual Defendant in the Complaint are, as discussed, legally insufficient to require trial.

The record is also devoid of any evidence demonstrating the Board was prejudiced against Plaintiffs by denying any tax exemptions for Plaintiffs' property based on religious or racial animosity. It is undisputed that Plaintiffs received a tax exemption for the Fellowship facility acquired in 1992 without opposition from the Town, Conway of the Board. A fair reading of the statements at the 1998 and 1999 hearings of the Board, on Plaintiffs' appeals of Conway's denials of the exemptions do not suggest any Board member held prejudicial views against Plaintiffs; rather, questions by Board members were directed solely to whether the property was being used exclusively for a religious purpose, the requirement established by state law for the exception. Plaintiffs' Exhibit 7 (Minutes of July 6, 1999 Cheektowaga Tax Assessment Grievance Hearing) at 13.⁸⁵

85 It is also significant that during neither of Plaintiffs' appeals to the Board concerning the tax exemption denials did Plaintiffs ever state or even intimate that they believed Conway's decisions were based on discriminatory motives, nor apparently were such attributions made during the subsequent state court judicial review proceedings as to either Conway or the Board itself.

For example, at the July 1999 Board meeting concerning Plaintiffs' 1999 tax exemption request, Board member Zelasko asked whether Plaintiffs had in fact taken steps to complete the planned improvements in accordance with the plan as approved by the Town. "As a proposed site, I would like to know if it [the improvement work] is [being done]. He [Grant] could build an apartment building there and be income producing, and then it wouldn't be considered exempt." Id. at 13. Further, in response to Grant's question as to what information would cause the Board to grant the exemption, Conway explained that, despite Grant's assertions that the planned improvements would make the land more useable by the Fellowship, based on Conway's observations of the property, "today I still see it as a commercial piece of property and it's not used exclusively for religious purposes." Id. at 17-18.⁸⁶ When Grant asked why Conway's observations were relevant to the Board's consideration of the Fellowship's request, the Board Chairman, Rudy Santa Maria, responded that it was relevant because "[n]othing [as to the use of the property] has changed." Id. at 17. Thus, the stated reasons for Conway's denial and the Board's affirmance of the denial of Plaintiffs' 1999 tax exemption were based upon the Board members' perceptions that Plaintiffs had failed to establish that the land was used exclusively for religious purposes, not because of bias toward Plaintiffs' religious views or the racial makeup of the Fellowship's membership on the part of the Board members. Mt. Healthy City School District, supra, 429 U.S. at 285-87; Gierlinger v. Gleason, 160 F.3d 858, 868 (2d Cir. 1998). Notably, Plaintiffs fail to assert, or submit evidence, that any individual Board member harbored discriminatory attitudes toward them.

86 It is relevant to recall that before the Fellowship acquired the property in 1994, it had been assessed by the Town as a piece of commercial property, i.e., an automobile dealership.

Although Marten is Ulatowski's supervisor, Marten Deposition at 21, and it was Marten who decided that Grant should be prosecuted for the tree removal violations, id. at 17, there is no indication in Marten's deposition testimony that his decision was based on any reason other than the need to assert neutral enforcement of the Tree Preservation Ordinance because of Plaintiffs' repeated violations about which local residents had repeatedly complained to the Town. Marten Deposition at 12, 17-18, 39. Before authorizing Ulatowski to file the complaint, Marten inspected the site and found trees greater than four inches in diameter had been cut. Id. at 14. Plaintiffs point to no evidence that Ulatowski influenced Marten's decision to authorize Grant's prosecution. Thus, no evidence tends to show that Marten took action against Plaintiffs because of their religious beliefs or the racial character of the Fellowship's congregation. As to Ulatowski, no probative evidence shows any religious or racial animus actuated his action regarding enforcement proceedings against Plaintiffs. Plaintiffs point to no evidence to suggest Marten was himself motivated by discriminatory reasons against Plaintiffs.

Further, the record does not support a finding that any individual Defendant, Johnson, Papero or Mueller as nonparties, was ever informed that the complaining local residents held religious or racial prejudices against the Fellowship and had requested Town officials take action against the Fellowship predicated upon such prejudice. For example, Plaintiffs point to the comment attributed to Mrs. Cartwright who confronted Andzel on December 15, 2001, and made remarks to Andzel manifesting strong religious and racial prejudice toward Andzel and the Fellowship. Andzel Affidavit ¶ 51-52. In addition to the fact that the encounter, assuming it occurred, took place several years after the actions which Plaintiffs allege form the basis of their claims and is thus not probative of Plaintiffs claims, Plaintiffs do not suggest that Defendants prompted such remarks or were even aware Mrs. Cartwright held such views.⁸⁷ Andzel also averred that two Town police officers were directed by Johnson to order the Fellowship to stop work on the property in December 2001. Id. However, no evidence is presented tending to show Johnson (or the police officers) acted for discriminatory reasons. Specifically, although Grant complained to Johnson in a letter dated January 5, 2002, about the officer's stop work order, Plaintiffs' Exhibit 34, nowhere in the letter does Grant accuse Johnson or the police of having acted upon discriminatory motives. Rather, according to Grant, Johnson had requested that residents who were concerned about possible violations of town ordinances by the Fellowship at the site report "any activity" on the property. Id. Such direction on its face manifests no evidence for religious or racial prejudice.

87 While the Complaint alleges that Defendants' violations continue to cause Plaintiffs harm, Complaint ¶¶ 34, 38, 43, 51, 55 and 60, Plaintiffs fail to allege that Defendants' unconstitutional conduct has continued after the time periods described in the Complaint.

According to Johnson, his role in regard to the property was limited to referring to the Town Building Department complaints received from local residents concerning grading, bulldozing and tree removals. Johnson Deposition at 18. Moreover, the court finds nothing in the record that even remotely supports Plaintiffs' bald assertion that Conway, local residents and Johnson acted "in concert," and that "their [the residents'] comments reveal the true invidious nature" of Defendants' actions. Plaintiffs' Memorandum at 8-9. While Plaintiffs rely on remarks by Conway to the Andzel's and Mrs. Cartwright to Andzel, which Plaintiffs characterize as indicative of religious or racial bias, no comments of an objectionable nature in the record are attributed to Johnson or to any other member of the Town Board, the Board of Assessment or any individual Defendant, Papero or Mueller. As discussed, there is a complete absence of evidence suggesting that Johnson and the residents somehow acted "in concert" against Plaintiffs to deprive them of their constitutional rights. Compare Church of Lukumi Babalu Aye, supra, 508 U.S. at 541 (finding official municipal animus based on expressions of hostility toward plaintiff's Santeria religion by members of public and city council members at a council meeting prior to passage of the offending ordinance). See Cazares, supra, 638 F.2d at 1282 (rejecting claims that mayor induced denial of plaintiff's real property tax exemption and affirming grant of summary judgment and award of attorneys fees based on frivolousness of plaintiff church's papers). Plaintiffs' assertions that the prejudices of some local residents animated Defendants actions against Plaintiffs therefore amount to "unsupported conjecture." Id.

Finally, as noted, Plaintiffs point to a series of private acts of harassment including racial graffiti on the Fellowship's church building, derogatory comments by local merchants, and a bomb threat which had been reported to the police as evidence that Defendants' actions were similarly motivated. Grant Deposition at 101-02. However, also as discussed, Discussion, supra, at 82-85, Plaintiffs fail to show that any Town official induced such criminal misconduct or that the Town Police Department failed to take proper investigative action for discriminatory reasons. For example, a letter sent to an assistant police chief by the Fellowship on November 12, 1999, concerning one incident involving the directing of a laser beam at Fellowship members, complained about receiving "conflicting information" regarding reporting policies. Plaintiffs' Exhibit 35. There are no communications in the record to support a finding that the police department failed or refused to investigate the incident to which the letter refers based on any indifference to possible violations of Plaintiffs' constitutional rights by unknown persons. In any event, the letter itself represents inadmissible hearsay. Thus, the court finds Plaintiffs have failed to show the existence of admissible evidence upon which a trier of fact could reasonably conclude that the Town acted against Plaintiffs in violation of their constitutional rights based on a policy, custom or practice constituting official municipal action established by a final municipal policy maker.

The evidence is also insufficient to show that either Papero or Mueller, the only two persons who had any direct contact with Plaintiffs during any alleged religious services, interfered or disrupted Plaintiffs' religious services or oppressed Plaintiffs based on their religious beliefs and free speech or association rights so as to provide any basis of § 1983 liability against the Town. Discussion, supra, at 76-78, 82-83, 103-13.

Finally, the record provides no basis to conclude that Marten or Ulatowski directed Papero to enforce the Tree Preservation Ordinance in a manner calculated to disrupt Plaintiffs' religious services. Papero was not one of Marten's or Ulatowski's employees, Marten Deposition at 24, and Marten was unaware of Papero's intention to visit the Fellowship on a Sunday during any Fellowship services, and disagreed, in retrospect, with Papero's decision to visit the Fellowship on the Sundays. Id. at 31. Plaintiffs fail to provide any evidence tending to contradict Marten's testimony that he had not been informed of Papero's intention to visit the Fellowship on Sunday to help the Fellowship's compliance with the Tree Preservation Ordinance.⁸⁸ Nor is there anything in the record to support finding that Papero's background or attitude toward the Fellowship's religious beliefs or racial makeup should have alerted Marten, as a municipal final policy decision maker, or other Town officials, to the possibility that Papero would act in a disruptive manner while inspecting the trees on Plaintiffs' property sufficient to trigger an obligation on Marten's part to select another person for the task, or to more closely supervise Papero's activities in relation to the enforcement of the Tree Preservation Ordinance on the Fellowship's property.

88 Plaintiffs do not submit any deposition testimony suggesting Ulatowski may have directed Papero's inspection activities on the Fellowship's property.

Finally, there is no evidence whatsoever that Papero harbored any hostility toward the Fellowship based on its religious beliefs or the racial composition of its membership. Indeed, no evidence, including Papero's deposition testimony, has been submitted from which it may be inferred that Papero was ever aware of the Fellowship's alleged religious beliefs or practices, including the interracial makeup of its membership, or any Fellowship special ministry to inner city poor, or held a bias against religion in general. Therefore, even if Plaintiffs' versions of the two Papero visits to the Fellowship are credited, such evidence is subject only to the interpretation that Papero's purpose was exclusively to assist in enforcement of the Tree Preservation Ordinance and not to interfere with Plaintiffs' religious beliefs or services, free speech or association rights based on any hostility toward Plaintiffs' alleged religious beliefs or practices, or the race of the Fellowship's members.

Marten also stated that the police normally served any summons obtained on the basis of the filing of charges alleging ordinance violations, Marten Deposition at 19, but he was not aware that Officer Mueller had been assigned to serve Grant with the summons issued. Id. at 21. Thus, there is no evidence that Marten directed, advised or condoned Mueller's conduct in serving Grant, which forms one of the grounds for Plaintiffs' First Amendment and Equal Protection claims, even it is assumed that Mueller's conduct actually interfered with Plaintiffs' Free Exercise rights or caused harm to Plaintiffs' other constitutional rights, as alleged. Complaint ¶¶ 30-31. No deposition testimony or affidavit of Mueller, or any witnesses other than Grant to the encounter, has been put forward on the instant motion by either party.⁸⁹ Neither have Plaintiffs proffered any evidence suggesting that Mueller was aware an evening "special service" featuring Mr. Bishop was scheduled at the Fellowship when he came to serve Grant, that Mueller had prior knowledge the program was of a religious content, that Mueller was aware of the general nature of Plaintiffs' religious beliefs, or held any hostility toward the Fellowship's beliefs prior to serving Grant with the summons. Nor does Marten's testimony provide any basis to infer that Marten's and Ulatowski's decision to prosecute Grant was predicated directly or indirectly upon Plaintiffs' alleged religious beliefs or the racial composition of the Fellowship's membership. Rather, Marten testified that the decision to prosecute was based on his opinion that "[the Fellowship] had broken their agreement to follow a certain site plan with respect to tree preservation on not one, but at least two occasions in violation of our tree ordinance." Marten Deposition at 17. Crucially, Plaintiffs offer no evidence to contradict Marten's testimony on this highly relevant point.

89 The record does not indicate any such depositions or affidavits were taken.

Moreover, the record does not support a need for trial on Plaintiffs' allegations that Mueller's service of the summons on Grant in fact interfered with Plaintiffs' religious exercise, free speech, or freedom of association rights. On October 22, 1998, Grant Affidavit ¶ 36, a Thursday evening, the guest speaker, Marcus Bishop, had left the Fellowship's church building and was being driven to the airport by Andzel when Mueller arrived to serve Grant with the summons. Andzel Deposition at 70-72;⁹⁰ Grant Deposition at 76. The persons in attendance were then in the Fellowship's church building foyer having conversation and refreshments following Bishop's lecture. Andzel Deposition at 69; Grant Deposition at 76-77. Although according to Grant, Officer Mueller acted in an "arrogant" manner, Grant Deposition at 79, no evidence supports a finding that Mueller attempted to interfere with any post lecture activity.

90 Although Plaintiffs claim the speaker, Marcus Bishop, had national stature, Andzel Affidavit ¶ 12, and was a "special" speaker, Grant Deposition at 77, 79, Plaintiffs nowhere describe whether Mr. Bishop's presentation was of a religious nature, or how it related to promoting any of Plaintiffs' asserted religious beliefs or missions.

In sum, Plaintiffs fail to demonstrate that Papero had any awareness of the Fellowship's claimed, yet unspecified, religious beliefs, the racial composition of the Fellowship's membership, that Papero's conduct on his two visits to the Fellowship's church building and property was for the purpose of interfering with the Fellowship and its members' asserted religious beliefs or practices, constituted coercion with respect to such religious beliefs or practices, harassed Plaintiffs because of the Fellowship's religious beliefs (or a bias against religion in general), or its membership's racial makeup, or was otherwise for some other unspecified malicious purpose. Thus, there is no evidence to support an inference that Papero acted against the Fellowship based on hostility toward Plaintiffs' religion or the racial composition of the Fellowship's membership. Rather, the record demonstrates Papero's sole purpose in visiting the Fellowship was to inspect and mark the dead trees on the Fellowship's property, eligible for removal under the Tree Preservation Ordinance, to help assure compliance with the ordinance, not to thwart the Fellowships efforts to conduct religious services with a racially diverse membership. Assuming, as Plaintiffs claim, Papero's conduct was deficient in the expected degree of civility, the lack of any admissible evidence that Papero's behavior was motivated by religious, racial or other malicious animus is fatal to Plaintiffs' First Amendment claims. See Storm v. Town of Woodstock, 32 F.Supp.2d 520, 527 (N.D.N.Y 1998) (considerations of parking congestion, loud noise and potential for increased criminal activity established that parking restrictions enacted by municipality failed to support finding of purpose to interfere with plaintiff's religious freedom to engage in "full moon gatherings" in a "Magic Meadow"), aff'd, 165 F.3d 14 (Table).

As with Papero, no evidence in the record directly establishes or implies that when serving the summons on Grant, Mueller was ever aware of the nature of the Fellowship's claimed religious beliefs or those of the guest speaker Bishop, or that Mueller directed his actions toward Grant, the Fellowship, and the attendees at the Bishop lecture that evening for the purpose of infringing upon the Fellowship's religious beliefs or Plaintiffs' free speech and association rights. Nor is there any evidence to suggest Mueller acted based on hostility toward the race of some of the Fellowship's members, particularly any members in attendance at the Bishop special service. Indeed, Plaintiffs do not describe the racial makeup of those in attendance at the lecture. Moreover, Plaintiffs do not state any facts from which it is inferrable that Mueller was directed by any individual Defendant (or any other Town official with final decisionmaking authority known or unknown to Plaintiffs) to serve the summons at the time and in the manner complained of by Plaintiffs.

Thus, the record does not provide any ground upon which either Papero or Mueller could be found to have abridged Plaintiffs' Free Exercise Clause rights or Plaintiffs' other alleged First Amendment rights, for discriminatory reasons, or that any actual interference with Plaintiffs' religious services or Plaintiffs' free speech and association rights occurred as a result of their conduct. Nor does the record support any inference that Marten or Ulatowski directed, condoned or ratified Papero's or Mueller's actions. Accordingly, as the trier of fact could not reasonably find, upon Plaintiffs' evidence, or the record on whole, that either Papero or Mueller interfered with any of Plaintiffs' constitutional rights as pleaded in this case, no ground exists upon which the Town may be held liable for Plaintiffs' asserted violations under § 1983 based on their conduct. Therefore, Defendants' motion for summary judgment on each of Plaintiffs' causes of actions against the Board of Assessment Review and the Town should be GRANTED.

8. Hybrid Claim

Plaintiffs assert as their Fourth Cause of Action a "hybrid claim" for violation of Plaintiffs' rights to the free exercise of religion, free speech, and free association. Complaint ¶¶ 44-46. Defendants seek to dismiss this claim for the reason that Plaintiffs cannot establish the violation of any of Plaintiffs' individual First Amendment rights comprising the hybrid claim. Defendants' Memorandum at 22.

Some federal courts have recognized a "hybrid claim" as one in which a single claim encompasses several protected interests, at least one of which is too insubstantial by itself to support a civil rights action. See, e.g., Jensen v. Reeves, 45 F.Supp.2d 1265, 1274-75 (D. Utah 1999). Such hybrid claims, however, have yet to be recognized by the Second Circuit. See Knight v. Connecticut Department of Public Health, 275 F.3d 156, 167 (2d Cir. 2001) (observing that Supreme Court's language in Smith, supra, 494 U.S. at 881, which has been interpreted by lower federal courts as recognizing the possibility of "hybrid claims is dicta and not binding on this court."). As the Second Circuit recently stated, "where multiple branches of First Amendment protection are implicated . . . the affected rights enjoy no more protection than each would receive when viewed separately." Melzer v. Board of Educ., 336 F.3d 189, 195 (2d Cir. 2003) (citing Knight, supra). As the court finds each of Plaintiffs' First Amendment claims to be without merit, Plaintiffs' hybrid claim also fails. Accordingly, Plaintiffs' Fourth Cause of Action, asserting such claim, should be DISMISSED.

9. Qualified Immunity

Alternatively,⁹¹ on this record, the individual Defendants, Conway, Marten and Ulatowski, are entitled to qualified immunity.⁹² Qualified immunity shields public and law enforcement officials, and others acting under color of state law, who perform discretionary functions from liability if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable public official would have known. Hope v. Pelzer, 536 U.S. 730, 739 (2002); Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982); Poe v. Leonard, supra, 282 F.3d at 132, Washington Square Post No. 1212 v. Maduro, 907 F.2d 1288, 1291 (2d Cir. 1990). Even if the right at issue was clearly established at the time of the alleged violation, if it was objectively reasonable for the defendant to believe that his act did not violate the plaintiff's constitutional rights, the defendant may nevertheless be entitled to qualified immunity. Anderson v. Creighton, 483 U.S. 635, 641 (1987); Lowth v. Town of Cheektowaga, 82 F.3d 563, 568-69 (2d Cir. 1996); Van Emrik v. Chemung County Dep't of Soc. Servs., 911 F.2d 863, 865-66 (2d Cir. 1990); Robison v. Via, 821 F.2d 913, 920-21 (2d Cir. 1987). "The availability of the defense depends on whether a reasonable officer could have believed his action to be lawful, in light of clearly established law and the information he possessed." Weyant v. Okst, 101 F.3d 845, 858 (2d Cir. 1996) (internal quotation marks omitted).

91 The Supreme Court now requires that before reaching the qualified immunity defense the court first determine whether on the record a § 1983 plaintiff has shown the existence of a constitutional violation. Saucier v. Katz, 533 U.S. 194, 200-01 (2001). Here, the court has found that the individual Defendants are entitled to summary judgment on the merits of each of Plaintiffs' causes of action. Because the matter is before the undersigned for a Report and Recommendation, should the District Judge or the Second Circuit on appeal, conclude, contrary to this court's findings regarding Plaintiffs' lack of standing or the merits of Plaintiffs' claims, it will become necessary to rule on the merits of the individual Defendants' qualified immunity defense. Accordingly, the court addresses Defendants' qualified immunity defense in the interest of judicial economy.

92 A municipal defendant such as the Board and Town in § 1983 action is not subject to qualified immunity as such an entity cannot be liable absent a policy or custom which causes a constitutional violation. Leatherman v. Tarrant County, 507 U.S. 163, 166 (1993). Moreover, the availability of qualified immunity for the defense to individual defendants does not preclude § 1983 liability against a municipality. Barrett, supra, 194 F.3d at 349 ("municipal liability for constitutional injuries may be found to exist even in the absence of individual liability, at least so long as the injuries complained of are not solely attributable to the actions of named individuals.") In this case, Plaintiffs' claims turn, in part, on the alleged actions of Councilman Johnson, Michael Papero and Officer Mueller, who are not named as defendants in this action, as well as other unnamed officials alleged to be unknown to Plaintiffs. Complaint ¶ 22 ("other officials, agents and employees of the Town" unknown to Plaintiffs, "participated in this campaign of harassment and discrimination"). However, Plaintiffs have yet to identify or add any such persons as defendants to this action.

A right is clearly established if (1) it was defined with reasonable specificity, (2) its existence has been affirmed by either the Supreme Court or the relevant court of appeals, and (3) a reasonable defendant official would have understood under the existing law at the time of the conduct at issue that his acts were unlawful. Brown v. City of Oneonta, N.Y. Police Dep't, 106 F.3d 1125, 1131 (2d Cir. 1997). If it was objectively reasonable for the defendant to believe that his act did not violate the plaintiff's constitutional rights, the defendant may be entitled to qualified immunity. Robison, supra, 821 F.2d at 920-21. Thus, "even assuming a [public] official violates a plaintiff's constitutional rights, the official is protected nonetheless if he objectively and reasonably believed that he was acting lawfully." Luna v. Pico, 356 F.3d 481, 490 (2d Cir. 2004).

A defendant is entitled to summary judgment based on qualified immunity if the court finds that the asserted rights were not clearly established, or "if the defendant adduces[s] sufficient facts [such] that no reasonable jury, looking at the evidence in the light most favorable to, and drawing all inferences most favorable to, the plaintiff . . . could conclude that it was objectively unreasonable for the defendant to believe that he was acting in a fashion that did not violate a federally protected right." Robison, supra, 821 F.2d at 921 (internal quotation omitted). Stated another way, a defendant is entitled to qualified immunity under the objectively reasonable standard if "officers of reasonable competence could disagree" on the legality of the defendant's actions. Lennon v. Miller, 66 F.3d 416, 420 (2d Cir. 1995).

However, where the objective reasonableness of an officer's actions depends on disputed facts, summary judgment is properly denied. Rivera v. United States, 928 F.2d 592, 607 (2d Cir. 1991); Brawer v. Carter, 937 F.Supp. 1071, 1082 (S.D.N.Y. 1996). Provided that no factual issues are disputed, the application of qualified immunity to the facts is a question of law for the court to decide. Finnegan v. Fountain, 915 F.2d 817, 821 (2d Cir. 1990). Accordingly, the court must evaluate whether Defendants' actions, in light of clearly established law in existence when actions by Conway, Marten and Ulatowski, of which Plaintiffs complain, were taken, violated any of Plaintiffs' First Amendment rights or the Fourteenth Amendment's Equal Protection Clause as Plaintiffs allege.⁹³

93 Although qualified immunity is unavailable to a municipal defendant in a § 1983 action based on a practice or custom or policy causing a constitutional abridgment, Leatherm an, supra, 507 U.S. at 166, as the court finds no basis for any of Plaintiffs' claims against the Defendants Board and Town, qualified immunity remains available as a defense to the individual Defendants.

Whether conduct identical to that alleged in a § 1983 claim against a defendant has been previously held to violate a plaintiff's constitutional rights is not determinative as to whether qualified immunity applies. Hope, supra, 536 U.S. at 739 ("very actions in question" need not have been held unlawful in order to defeat qualified immunity). It cannot be disputed that the constitutional rights to the free exercise of religion, free speech, free association, and equal protection as guaranteed by the First and Fourteenth Amendments were clearly established when the Fellowship first sought, beginning in 1994 when it acquired the property, to improve the site at its 3125 Genesee Street property for use in conjunction with its alleged religious practices and other programs. Nevertheless, based on the facts of this case, the court finds it was objectively reasonable for Defendants to believe that by insisting that the Fellowship comply with the Tree Preservation Ordinance, and issuing stop work orders upon credible evidence of violations of the ordinance at the Fellowship's property, Defendants were objectively reasonable in believing that they were not acting in violation of any of Plaintiffs' clearly established constitutional rights for several reasons.⁹⁴

94 Plaintiffs fail to explain how the individual Defendants could have unreasonably believed that they were not interfering with Plaintiffs' constitutional rights if Defendants' actions caused no harm to such rights.

First, no evidence suggests such rights were actually violated or curtailed. For example, Plaintiffs' attorney recognized the day before Plaintiffs filed their Complaint in this action that, as of July 1999, the property where the trees were located and Plaintiffs' improvements were directed was used by Plaintiffs for "outdoor revival meetings" and recreation in connection with the Fellowship's religious programs. Minutes of July 6, 1999 Cheektowaga Tax Assessment Grievance Hearing, Plaintiffs' Exhibit 7 at 4. Thus, there is no evidence that Plaintiffs' religious exercises in connection with the parcel, which was the subject of the Town's enforcement action, were ever curtailed as a result of such actions. Further, Defendants have submitted ample evidence establishing that any actions taken by Defendants in connection with Plaintiffs' cleanup and landscaping of the Fellowship's property in order to develop a recreational area, adjunct to the Fellowship's religious program, were not done in accordance with the Town's ordinances. As repeatedly discussed, supra, Plaintiffs have failed to submit any admissible evidence sufficient to call into question whether Defendants' actions, including the decision by Marten and Ulatowski to prosecute violations of the Tree Preservation Ordinance against Grant, were motivated by a desire to interfere with Plaintiffs' exercise of their religion or were so racially biased that they demonstrate an intent to interfere with Plaintiffs' freedom of speech and association protections with respect to the racially integrated character of the Fellowship's congregation, rather than to neutrally enforce the Town's applicable ordinances.

Moreover, even if Conway made the disputed comments to the Andzels as Plaintiffs claim, because Plaintiffs were not entitled to the tax exemption as a matter of federal constitutional right, in expressing his asserted bias, Conway could not have reasonably believed he was violating any constitutional right of Plaintiffs with regard to the claimed tax exemption. As noted, supra, Plaintiffs' ability to use the nonexempted property for what they assert were religious purposes was in no way curtailed by Conway's discriminatory denial of the requested exemptions. Further, as no evidence shows Conway was familiar with any aspect of Plaintiffs' religious beliefs (or held antipathy toward religions in general) or the racial makeup of the Fellowship's membership, it is impossible to find that Conway should reasonably have known he was acting in a discriminatory manner as to the any of Plaintiffs' central religious beliefs or important practices by denying the tax exemptions. Rather, the record supports a finding that Conway reasonably believed that the property was not being utilized exclusively for religious purposes and denied the exemption for that reason, not because the property was to be used for religious purposes as to which he held any objection based on the nature of the Fellowship's religion or the race of its members.

Additionally, Plaintiffs provide no evidence to rebut Conway's testimony that in 1994 he had advised David Abbatoy, Grant's predecessor as Chief Administrator of the Fellowship, that the requested tax exemption for the Fellowship's recently acquired vacant parcel at 3125 Genesee Street could have been readily obtained at that time if the Fellowship had then simply elected to combine its two properties, 3125 and 3325 Genesee Street, into one for tax assessment purposes. As Conway stated to the Board "at that time [in 1994], I mentioned to Mr. Abbatoy to combine the two parcels into one and the exemption [on the Fellowship's building] would apply [to both parcels]. For some reason, Mr. Abbatoy did not want to combine that vacant land with the church." Minutes of July 1999 Meeting of Town's Board of Tax Assessment Review, Plaintiffs' Exhibit 7 at 17. However, according to Conway, the accrual of back taxes on the vacant parcel, following Plaintiffs' judicial challenge to the denial, prevented Conway from legally combining the parcels for tax exemption purposes in 1998, as the Fellowship then requested. Conway Deposition at 52-53. Plaintiffs do not contend otherwise.

The undisputed testimony shows Conway accepted, in concept, at an early stage in this unfortunate scenario, Plaintiffs' proposed tax exemption for the vacant parcel, provided such exemption could be lawfully accomplished, thus negating any basis for Plaintiffs' insistence that they were deprived of a tax exemption because of Conway's alleged discriminatory attitudes toward the Fellowship. No evidence proffered by Plaintiffs links Conway to Marten's and Ulatowski's enforcement decisions of the Tree Preservation Order against Plaintiffs. Plaintiff Andzel was unable to state that any Defendant had made any reference to the racial composition of the Fellowship's membership or was responsible for the racial epithets or other forms of harassment suffered by the Fellowship and its members. Andzel Deposition at 49-52. Nor have Plaintiffs produced anything demonstrating Plaintiffs, that prior to the decision to prosecute for violations of the Tree Preservation Ordinance in October, 1998, ever notified the Town when they intended to commence clearing the property in accordance with the approved landscaping plan as approved by Marten so as to permit the Town to oversee the work, despite the Town's numerous requests.⁹⁵ Thus, the record demonstrates that in denying Plaintiffs' the requested tax exemptions Conway did not unreasonably believe he was not violating any constitutional rights Plaintiffs enjoyed under the First and Fourteenth Amendments.

95 On May 25, 1999, seven months later, Grant wrote Ulatowski a letter informing that the Fellowship planned to "work on the land." Plaintiffs' Exhibit 14.

Plaintiffs have also failed to provide evidence that the enforcement actions by Marten and Ulatowski under the Tree Preservation Ordinance were either directed at Plaintiffs' religion, against Plaintiffs' free exercise of their religion, or based on the racial makeup of Plaintiffs' membership or any other undisclosed malicious reason. Rather, the record shows that both Marten and Ulatowski applied conditions to Plaintiffs' tree removal plan, as part of Plaintiffs' site improvement project as approved by the Town Planning Board, well within their discretion and pursuant to the explicit authority of the Tree Preservation Ordinance's provisions, particularly the marking of dead trees eligible for removal by the Fellowship. The disputed stop work orders were, as Plaintiffs concede, the result of complaints, true or not, by neighboring residents that violations were taking place on Plaintiffs' property. No evidence remotely suggests any individual Defendants or Town official instigated groundless or fabricated complaints made to Town officials by local residents against the Fellowship. Before deciding to initiate prosecution, Marten and Ulatowski both personally inspected the site and found physical evidence that protected live trees had been cut in violation of the Tree Preservation Ordinance and the approval which the Fellowship had previously received from Marten. Ulatowski's much maligned "church harasser" comment, even if not inadmissible hearsay, could not prompt a reasonable juror to conclude the comment manifested hatred of religion in general or Plaintiffs' religion given the circumstances of its utterance that it was merely a simplistic effort to rebut Grant's repeated insinuations at their August 1997 meeting that Ulatowski was prejudiced against Plaintiffs' religious beliefs.

Accordingly, should the District Judge find sufficient merit to any of Plaintiffs' constitutional claims justifying trial, Defendants Conway, Marten and Ulatowski are nevertheless entitled to summary judgment based on qualified immunity as they have adduced sufficient facts such that no reasonable juror, viewing the available evidence in the light most favorable to Plaintiffs, could conclude that Marten's and Ulatowski's enforcement of the Tree Preservation Ordinance, and Conway's denial of tax exemptions with respect to Plaintiffs' property, were not objectively reasonable, such that these Defendants did not reasonably believe they were not violating Plaintiffs' clearly established constitutional rights. Robison, supra, 821 F.2d at 921.⁹⁶ Accordingly, Defendants' motion for summary judgment alternatively should be GRANTED on this ground.

96 Grant agreed to an adjournment in contemplation of dismissal as a disposition of the ordinance violation and Plaintiffs do not contend that Defendants sought to enforce an ordinance unconstitutional on its face or that Defendants engaged in a malicious prosecution.

10. Plaintiffs' State Law Claims

As noted, in addition to violations of constitutional rights protected by the First Amendment's Free Speech and Free Exercise Clauses, and their right to equal protection under the Fourteenth Amendment, Plaintiffs also allege violations of analogous rights protected by the New York State Constitution. Specifically, Plaintiffs assert claims for violations of New York Constitution Article I, Section 3 (guaranteeing free exercise of religion — Plaintiffs' Fifth Cause of Action, Complaint ¶¶ 47-51), New York Constitution Article I, Section 8 (protecting free speech and association — Plaintiffs' Sixth Cause of Action, Complaint ¶¶ 52-55), and Article I, Section 11 (prohibiting discrimination in respect of civil rights based on "race, color, creed or religion" — Plaintiffs' Seventh Cause of Action, Complaint ¶¶ 56-60).

Defendants contend that as the elements of each of Plaintiffs' federal claims are identical to those of Plaintiffs' respective parallel state constitutional claims, summary judgment should be granted as to such state claims if the court finds summary judgment should be granted as to any of Plaintiffs' federal claims. Defendants' Memorandum at 12 n. 5 (citing Matter of New York State Employment Relations Bd. v. Christ the King Regional H.S., 682 N.E.2d 960 (N.Y. 1997)); id. at 17 n. 11 (citing Stringfellow's of New York v. City of New York, 694 N.E.2d 407 (N.Y. 1998) (free exercise claims)); id. at 21 n. 14 citing Brown v. State, 674 N.E.2d 1129 (N.Y. 1996) (equal protection). However, no New York constitutional issues were presented in the Christ the King case, and the Stringfellow's of New York decision did not discuss the question of whether the New York Constitution's free speech protections are coextensive of those available under the First Amendment.

While reiterating their state law claims in reply to Defendants' contentions, Plaintiffs do not specifically deny that, with the possible exception of Plaintiffs' free speech claim, Plaintiffs' Memorandum at 13-14, the elements of their state claims are identical to those of each of their respective federal claims. Specifically, regarding the free exercise claim, Plaintiffs refer to New York caselaw holding that religious freedom is basic to "a democratic society," Plaintiffs' Memorandum at 17-18 (citing Atkins v. Medical Examiner of Westchester Co., 418 N.Y.S. 2d 839 (Sup.Ct. Westchester Co. 1979)), but do not address whether, for example, under the New York state constitution a plaintiff is required to make a prima facie showing that the alleged religious practices at issue relate to a bona fide religious belief and the criteria a court should apply in making such a threshold determination. Id.

As to Plaintiffs' free speech claim, Plaintiffs contend that the New York constitution affords "even greater protection" than the First Amendment. Plaintiffs' Memorandum at 14 (citing cases). Although Plaintiffs also contend Defendants violated New York Constitution Article I, Section 11, protecting persons or groups against official enforcement based on discriminatory motives, Plaintiffs' Memorandum at 6-13, Plaintiffs fail to address whether the contours of such a New York state constitutional law claim are identical to one based on the federal Equal Protection Clause of the Fourteenth Amendment. Id.

Regarding Plaintiffs' equal protection claims under the New York state constitution, it is well established that the protection afforded by the New York constitution, specifically Article I, Section 11, "mirrors . . . [the] federal equal protection claim brought under section 1983." Hyant v. State University of New York, 352 F.3d 733, 754 (2d Cir. 2003) (citing Brown, supra, 674 N.E.2d at 1129). "[Article I, Section 11 of the New York constitution] was intended to afford coverage as broad as that provided by the Fourteenth Amendment to the United States constitution. . . ." Brown, supra, 674 N.E.2d at 1139-40 (citing Dorsey v. Stuyvesant Town Corp. 87 N.E.2d 541 (N.Y. 1949)). Thus, this court's determination that Plaintiffs' Fourteenth Amendment equal protection claims (Plaintiffs' Third Cause of Action) are without merit implies necessarily that Plaintiffs' state claims of a denial of equal protections, specifically based upon a violation of New York State Constitution Article I, Section 11, are similarly foreclosed, and therefore summary judgment should be granted as to such latter state claims, Plaintiffs' Seventh Cause of Action, as well.

Notwithstanding Plaintiffs' failure to respond to Defendants' contention that each of Plaintiffs' state claims are congruent with Plaintiffs' corresponding federal constitutional claims, federal courts have recognized that "the New York Constitution protects rights to free expression that the First Amendment does not protect." Hickerson v. City of New York, 932 F.Supp. 550, 555 (S.D.N.Y. 1996) (citing People ex rel. Arcara v. Cloud Books, Inc., 503 N.E. 2d 492 (N.Y. 1986)). Indeed, in Hickerson, the district court remanded to state court the plaintiff's state freedom of expression claim and stayed the federal § 1983 claim based on the Pullman abstention doctrine. Id. at 556-57 (citing Railroad Comm'n v. Pullman, 312 U.S. 496 (1941)). Plaintiffs make no such request here, urging, rather, that this court should determine the merits of their state claims irrespective of any difference in the scope of protection available under the alleged parallel federal and state constitutional protections asserted in this case and the specific requirements for relief applicable to each of Plaintiffs' state claims. See Plaintiffs' Memorandum at 6, 13, 17 (contending that the record established Defendants' liability upon their state constitutional claims).⁹⁷

97 Oddly, Plaintiffs' Memorandum does not, in opposition, discuss the merits of their federal claims to summary judgment.

As to Plaintiffs' state law free exercise claims (Plaintiffs' Fifth Cause of Action), the court finds the issue of identicality between federal and New York State constitutional protection to be an open one. See Matter of Miller, 684 N.Y.S.2d 368, 370 (App.Div. 4^th Dep't 1998). "The [New York] Court of Appeals has not definitively stated whether the scope of [N.Y. Const., Art. I, § 3) is coextensive with the [federal constitution's] Free Exercise Clause . . . nor has it decided whether the . . . [analysis] adopted by the [Supreme Court] in Employment Div., Ore. Dept. of Human Resources v. Smith, [ supra, 494 U.S. 879-92] should be applied in resolving claims that N.Y. Constitution, Article I, § 3, has been violated." Matter of Miller, supra, 684 N.Y.S.2d at 370. While the merits of Plaintiffs' claims do not challenge the facial neutrality of the relevant Town ordinances, nevertheless, because, as discussed, Discussion, supra, at 165, the court perceives a substantive difference in the basic requirements for finding a federal Free Exercise Clause violation based on Defendants' interference with Plaintiffs' putative religion, compared to the established requirements for such a claim under New York state constitutional law, the court finds that the merits of Plaintiffs' claimed impairment of their free exercise rights under the New York Constitution should not be reached per se on the instant motion. Rather, as with Plaintiffs' state law free speech and association claims, the court should decline to exercise supplemental jurisdiction over Plaintiffs' Fifth (Free Religious Exercise) and Sixth (Free Speech and Association) Causes of Action brought by Plaintiffs pursuant to the New York constitution.

Under 28 U.S.C. § 1367, "in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution." 28 U.S.C. § 1367(a). The court may decline to exercise supplemental jurisdiction available under § 1367(a) over a state law claim where (1) the court has dismissed all claims over which it has original jurisdiction, or (2) in exceptional circumstances, there are other compelling reasons for declining jurisdiction. 28 U.S.C. § 1367(c)(2), (3). The Second Circuit has stated that "'in the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered . . . will point toward declining to exercise jurisdiction over the remaining state-law claims.'" Travelers Ins. Co. v. Keeling, 996 F.2d 1485, 1490 (2d Cir. 1993) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988)); Warren v. Fischel, 33 F.Supp.2d 171, 178 (E.D.N.Y. 1999).

In the instant matter, assuming the District Judge agrees with the court's recommendation that all of Plaintiffs' federal civil rights claims, including Plaintiffs' equal protection claims, based on discriminatory enforcement, which are coextensive with N.Y. Const. Art. 1, Sec. 11 (Plaintiffs' Seventh Cause of Action), be dismissed as against all Defendants, the only remaining causes of action not coextensive with Plaintiffs' federal constitutional claims, and thus not necessarily disposed of based on Defendants' summary judgment motion, will be Plaintiffs' state law free exercise (Plaintiffs' Fifth Cause of Action), and free speech and association (Plaintiffs' Sixth Cause of Action) claims. As such, the court should decline to exercise supplemental jurisdiction as to these latter two state constitutional claims. See Martz v. Incorporated Village of Valley Stream, 22 F.3d 26, 32 (2d Cir. 1994) ("[h]aving dismissed all of the plaintiff's federal claims, the district court was correct in dismissing her pendent state law claims."). See also Hickerson, supra, 932 F.Supp. at 556-57 (abstaining from resolving state law based claim whose resolution under state law is unclear). Whether the New York constitutional provisions protecting the free exercise of religion and freedom of speech and association, relied upon by Plaintiffs should be extended to Plaintiffs' claims upon the facts of this case, raises potentially difficult questions of state constitutional interpretation best left to the New York state courts. The court therefore recommends that Plaintiffs' remaining state law claims, i.e., Plaintiffs' Fifth and Sixth Causes of Action, pursuant to 28 U.S.C. § 1367(a), be DISMISSED, without prejudice to permit further proceedings in the New York courts.

Alternatively, a close analysis of each of Plaintiffs' First Amendment claims reveals they are, in effect, contentions that Defendants discriminated against their religious exercise rights, and free speech and association protections in the enforcement of Town ordinances and the denial of tax exemptions based on irrational and unconstitutional grounds of religious and racial bias. As such, all of Plaintiffs' claims, including their Fifth and Sixth Causes of Action, at bottom, devolve into a single claim of a denial of equal protection of law. So construed, granting summary judgment to Defendants, as herein recommended, on all Plaintiffs' federal claims also determines that Plaintiffs' state constitutional right to equal protections under N.Y. Constitution Article I, Section 11, have not been violated, as both constitutional sources of equal protection have been held to be coextensive. See Matter of Esler v. Walters, 437 N.E.2d 1090, 1094 (N.Y. 1982) (holding the Equal Protection Clause of the New York State Constitution is no broader in coverage than its federal counterpart). Accordingly, if the District Judge agrees with this latter alternative analysis, summary judgment should be granted to Defendants on all Plaintiffs' claims, state and federal, the action dismissed in its entirety and the case closed.

CONCLUSION

Based on the foregoing, Defendants' motion for summary judgment (Doc. No. 12) should be GRANTED as to Plaintiffs' First, Second, Third, Fourth and Seventh Causes of Action; Plaintiffs' Fifth and Sixth Causes of Action should be DISMISSED. Alternatively, Defendants' motion should be GRANTED against all Plaintiffs' Causes of Action, the action DISMISSED and the Clerk of Court directed to close the case.

Pursuant to 28 U.S.C. § 636(b)(1), it is hereby

ORDERED that this Report and Recommendation be filed with the Clerk of the Court.

ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of the Court within ten (10) days of service of this Report and Recommendation in accordance with the above statute, Rules 72(b), 6(a) and 6(e) of the Federal Rules of Civil Procedure and Local Rule 72.3.

Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court's Order. Thomas v. Arn, 474 U.S. 140 (1985); Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989); Wesolek v. Canadair Limited, 838 F.2d 55 (2d Cir. 1988).

Let the Clerk send a copy of this Report and Recommendation to the attorneys for the Plaintiffs and the Defendants.

SO ORDERED.