DOS Support of Motion

8/6/2019 DOS Support of Motion

http://slidepdf.com/reader/full/dos-support-of-motion 1/20

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

--------------------------------------------------------------------xKIRYAS JOEL ALLIANCE, CONGREGATION Electronically Filed

BAIS YOEL OHEL FEIGE, ZALMAN WALDMAN,

MEYER DEUTSCH, BERJ\JARD TYRJ\JAUER,ISAAC SRUGO, JOSEPH WALDMAN, MOSHE

TENNENBAUM, DAVID WOLNER and JOEL

WALDMAN,

Plaintiffs,

Case No. 11 Civ. 03982 (JSR)

-against-

VILLAGE OF KIRYAS JOEL, JACOB REISMAN,

Village Trustee, sued in his official capacity, MOSES

GOLDSTEIN, Village Trustee, sued in his official

capacity, SAMUEL LANDAU, Village Trustee, sued

in his official capacity, ABRAHAM WEIDER, Mayor

of the Village of Kiryas Joel, sued in his official

capacity, MOSES WITRIOL, Director, Village of

Kiryas Joel Department of Public Safety, sued in his

individual and official capacities, CONGREGATION

YETEV LEV D'SATMAR OF KIRYAS JOEL, DAVID

EKSTEIN, TOWN OF MONROE, and CESAR A.PERALES, sued in his official capacity as acting New

York State Secretary of State,

Defendants.

---------------------- ..----------------------------------------------x

MEMORANDUM OF LAW IN SUPPORT OF THE

SECRETARY OF STATE'S MOTION TO DISMISS

ERIC T. SCHNEIDERMAN

Attorney General of the State of New York

Attorney for Defendant Cesar A. Perales

120 Broadway, 24th Floor

New York, New York 10271

(212) 416-8888

Mark E. Klein

Assistant Attorney General

of Counsel

Case 1:11-cv-03982-JSR Document 28 Filed 08/01/11 Page 1 of 20



TABLE OF CONTENTS

Page

TABLE OF AUTl-IORITIES ii

Preliminary Statement I

Statement of the Case I

A. The Allegations of the Amended

Complaint Regarding the Secretary ofState 1

B. The New York Village Law and the

Village's "Incorporation" PursuanfThereto 2

C. The Secretary of State's Attempt to Resolve

Plaintiffs' Claim Against Him Without Motion Practice .4

ARGlTMENT 6

POINT I- THIS COURT LACKS SUBJECT-MATTER JURISDICTION

OVER PLAINTIFFS' PURPORTED CLAIM AGAINST THE

SECRETARY OF STATE BECAUSE IT IS BARRED BY THE

ELEVENTH AMENDMENT TO THE CONSTITUTION 6

A. Plaintiffs Do Not, Nor Can They, Allege that the Statute Pursuant

to Which the Secretary of State Purportedly "Recognized" the

Municipal Status of the Village Is Unconstitutional 7

B. Plaintiffs' Request for Relief Against the Secretary of State -

Though Couched in the Form of an Injunction -- Does Not

Properly Seek to Prevent a Continuing Violation of Federal Law 10

POINT II - PLAINTIFFS' CLAIM AGAINST THE SECRETARY OF

STATE ALSO FAILS TO STATE A CLAIM FOR RELIEF 13

CONCLUSION " 15




TABLE OF AUTHORITIES

Cases Page

Bd. ofTrs. of the Univ. ofAlabama v. Garrett,

531 U.S. 356 (2001) 7

Colon v. Coughlin,

58 F.3d 865 (2d Cir. 1995) 13

Edelman v. Jordan,

415 U.S. 651 (1974) 11

Ex parte Young,

209 U.S.123 (1908) 7, 9,10,11,12

Green v. Mansour,474 U.S. 64 (1985) 7, 11

Hopkins v. Clemson Agr. ColI. of S. Carolina,

221 U.S. 636 (1911) 7

Ippolito v. Meisel,

958 F. Supp. 155 (S.D.N.Y. 1997) 11

Monell v. Dep't of Soc. Servs. of the City ofN.Y.,

436 U.S. 659 (1978) 8

New York City He:alth & Hosp. Corp. v. Perales,

50 F.3d 129 (2d Cir. 1995) 11

Papasan v. Allain,

478 U.S. 265 (1986) 11

Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc.,

506 U.S. 139 (1993) 7

Quem v. Jordan,

440 U.S. 332 (1979) 10, 12

Reynolds v. Giuliani,

506 F.3d 185,191 (2d Cir. 2007) 13,14

Virginia Office for Prot. & Advocacy v. Stewart,

U.S. ,131 S.Ct. 1632 (2011) 6

11




Will v. Michigan Dep't of State Police,

491 U.S. 58 (1989) 7

Wright v. Smith,

21 F.3d 496 (2cl Cir. 1994) 13

United States Constitution

Eleventh Amendment : passim

Federal Statutes

42 U.S.C. § 1983 13, 14

State Statutes

N.Y. Gen. Mun. Law § 773, et seq 10

N.Y. Village Law § 2-200(1) 2, 8

N.Y. Village Law § 2-202 2, 8



N.Y. Village Law § 2-208 3




N.Y. Village Law § 2-232(1) 10


N.Y. Village Law § 2-234(1) 3, 8, 9

iii




Preliminary Statement

Defendant Cesar A. Perales, sued herein in his official capacity as acting New York State

Secretary of State (the "Secretary of State"), respectfully submits this memorandum of law in

support of his motion for an order (i) pursuant to Federal Rule 12(b)(1), dismissing the Secretary

of State from this action on the ground that this Court lacks subject-matter jurisdiction over

plaintiffs' claim against him; and (ii) pursuant to Federal Rule 12(b)(6), dismissing the Secretary

of State from this action on the ground that plaintiffs have failed to state a claim against him

upon which relief can be granted.

Statement of theCase

A. The Allegations of the Amended

Complaint Regarding the Secretary of State

Plaintiffs' Amended Complaint in this action IS 60 pages long and contains 426

paragraphs of allegations. In those 60-pages and 426 paragraphs, only one paragraph contains

any allegation relating to the Secretary of State: paragraph 32, which alleges that Mr. Perales is

the acting New York State Secretary of State who, "as such, is the official charged with

managing the affairs of the New York State Department of State." No other allegation in the

Amended Complaint even refers to the Secretary of State.

During the Court conference in this action on July 14, 2011, and in response to this

office's statement to the Court that no other allegation in the Amended Complaint refers to the

Secretary of State, plaintiffs' counsel directed the Court's attention to paragraph 416 of the

Amended Complaint. That paragraph, which refers to the "State of New York" but not the

Secretary of State, alleges as follows:

Due to of [sic] the eX'cessive infusion and entanglement of religion into the

Village government's affairs, as set forth in this Complaint, the State of New

York's recognition of the Village's municipal status, and its provision to the




Village of authority attending such municipal status by operation of state law,

violates the First Amendment to the United States Constitution, as made

applicable to the states by the Fourteenth Amendment.

See Amended CompI., at 55.

As is apparent from the quoted language, paragraph 416 does not identify in any manner

how or when the '''State ofNew York's recognition of the Village's municipal status" took place.

Nor does that paragraph, or any other allegation in the Amended Complaint, identify in· what

way, if any, the State of New York or its agencies or officials supposedly violated plaintiffs'

First Amendment rights.

The Amended Complaint does not seek damages against the Secretary of State. In fact,

the only relief that plaintiffs seek against the Secretary of State is set forth in paragraph G of the

Wherefore clause in the Amended Complaint, which sets forth the following prayer for relief:

G. Penmanently enjoin Defendant Cesar A. Perales, in his official capacity as

acting New York State Secretary of State, and his successors to that Office, from

recognizing the municipal status of the Village ofKiryas Joel.

Amended CompI., at 58.

B. The New York Village Law and the

Village's "Incorporation" Pursuant Thereto

The statute pursuant to which the State's purported "recognition" of the Village's

municipal status took place is the New York State Village Law, set forth in 63 McKinney's

Consolidated Laws of N.Y. The "incorporation" of a village is governed by Article 2 of the

Village Law. That article sets forth in detail the procedure whereby a "territory containing a

population of at least five hundred persons who are regular inhabitants thereof, as hereinafter

defined, may be incorporated as a village. . . ." See Village Law § 2-200(1).

For example, section 2-202 of the Village Law provides that a "proceeding for the

incorporation of such territory as a village shall commence with a petition" and sets forth the

2




"requirements for such petition"; §§ 2-204 and 2-206 set forth the requirements for a "notice of

hearing" and the procedure for a hearing regarding such a petition; § 2-208 sets forth the

procedure for determining whether a petition complies with the requirements of Article 2; and §§

2-212 and 2-220 provide when an "election to determine the question of incorporation" shall take

place and how the election shall be conducted.

None of these procedures involve the secretary of state. In fact, the secretary of state's

only involvement in the incorporation of a village takes place after a majority of the relevant

voters has voted in favor of incorporation, and after "the town clerk with whom the original of

the certificate of election was filed" prepares and delivers "a report of incorporation to the

secretary of state" and others. See Village Law § 2-232.

Section 2-234(1) of the Village Law provides that, after these events have occurred,

"upon receipt of the report of incorporation" the secretary of state "shall forthwith file same in

his office and in a certificate of incorporation shall certify, under the seal of his office, to the

clerk of each town in which any portion of such territory is located that said report has been filed

in his office giving the date of filing thereof." See Village Law § 2-234(1) (emphasis added).

Thus, the secretary of state's role in filing a report of incorporation is purely ministerial and

wholly non-discreti9nary.

The Secretary of State's records indicate that, in accordance with the provisions of

Village Law §2-234(1), on March 2, 1977, the office of the then-secretary of state filed "in his

office" the Monroe Town Clerk's "report of incorporation" of the Village of Kiryas Joel and

acknowledged receipt and filing of that report. (See Exhibit A to the accompanying affidavit of

Mark E. Klein, sworn to July 29,2011 ("Klein Aff.").)

Thus, pursuant to the specific direction of the Legislature in §2-234 of the Village Law,

3




the State of New York's alleged "recognition" of the Village consisted, in its entirety, of then

then-secretary of state's filing, on March 2, 1977, of the Monroe Town Clerk's "report of

incorporation" of the Village and his certification that he filed such report.

C. The Secretary of State's Attempt to Resolve

Plaintiffs' Claim Against Him Without Motion Practice

The Court will recall that, during the court conference in this action on July 14, 2011,

counsel for the Secretary of State suggested that there was no basis for naming the Secretary of

State as a defendant in this action, because his office's sole role in connection with the

incorporation of a village is to act as a "filing cabinet" with respect to the "report" of a village's

incorporation after the statutory requirements for such incorporation have been satisfied.

Counsel also stated that, as he had already informed plaintiffs' counsel, any order by the Court

directing that the Village be dissolved would be binding upon the Secretary of State, and that

there was therefore no need for an injunction enjoining the Secretary of State from "recognizing"

the Village's "municipal status." The Court appeared to agree with the Secretary of State's

position and, addressing plaintiffs' counsel, stated that the matter should appropriately be dealt

with "by stipulation."

Accordingly, following the July 14th

conference this office prepared and sent to plaintiffs'

counsel a proposed Stipulation and Order. In addition to providing for the withdrawal of

paragraph G of the Wherefore clause of the Amended Complaint and the dismissal of the

Secretary of State with prejudice, that proposed Stipulation and Order provided that "the

Secretary of Statl;: will recognize any final, non-appealable order of this Court directing

dissolution of the Village of Kiryas Joel."

Plaintiffs' counsel has refused to agree, however, to dismiss the Secretary of State from

this action with prejudice or to withdraw the injunctive relief plaintiffs seek in paragraph G of

4




the Wherefore clause of their Amended Complaint. Rather, in a revised draft Stipulation and

Order that plaintiffs' counsel sent on July 22nd

, plaintiffs proposed to dismiss the Secretary of

State from the action without prejudice and on the following condition: "provided that plaintiffs

may seek relief against the Secretary of State, namely an injunction requiring that office to de

certify the municipal status of the Village of Kiryas Joel and upon the incorporated [sic]

representation by the Secretary of State that he and his successors in office shall recognize,

implement and follow any final, non-appealable order of this Court directing dissolution of the

Village ofKiryas Joel or any other remedy." (Emphasis added.)

Even putting aside the lack of clarity of some of the language of plaintiffs' proposed

Stipulation and Order, plaintiffs' supposed "dismissal" of the Secretary of State under the

proposed Stipulation is in fact no dismissal at all, and instead would permit plaintiffs to seek the

same relief (and, in fact, greater relief than) plaintiffs seek in paragraph G of the Wherefore

clause of the Amended Complaint.

Because this office was unable to persuade plaintiffs' counsel to in fact dismiss the

Secretary of State from this action, the Secretary of State now moves for his dismissal from this

action pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).

5




ARGUMENT

POINT I

THIS COURT LACKS SUBJECT-MATTER JURISDICTION

OVER PLAINTIFFS' PURPORTED CLAIM AGAINST THESECRETARY OF STATE BECAUSE IT IS BARRED BY THE

ELEVENTH AMENDMENT TOTHE CONSTITUTION

As stated above, the sole and entire basis upon which plaintiffs have sued the Secretary of

State in this action is apparently set forth in paragraph 416 of the Amended Complaint, where

plaintiffs allege that "[d]ue to of [sic] the excessive infusion and entanglement of religion into

the Village government's affairs, as set forth in this Complaint, the State of New York's

recognition of t h ( ~ Village's municipal status, and its provision to the Village of authority

attending such municipal status by operation of state law, violates the First Amendment to the

United States Constitution ...."

Significantly, plaintiffs do not even suggest that the statutory procedure set forth in the

Village Law pursuant to which a village, in general, and the Village of Kiryas Joel, in particular,

attains "municipaI status" is unconstitutional. Nor do plaintiffs suggest that the purely

ministerial acts performed by the then-secretary of state infiling the MOlioe Town Clerk's report

of incorporation of the Village and acknowledging that it had done so, were unconstitutional.

Finally, plaintiffs fail to allege any "special relation" between the Secretary of State and the

alleged unconstitutional conduct of which plaintiffs complain in this action. For these ,reasons,

the Eleventh Amendment to the United States Constitution bars plaintiffs' claim against the

Secretary of State and divests this Court of subject-matter jurisdiction to consider it.

The Eleventh Amendment to the Constitution bars all federal suits by a citizen of a state

against a state or the state's agencies or officials, absent the state's unequivocal consent to such a

suit or a valid abrogation of sovereign immunity by Congress. S e e , ~ , Virginia Office for Prot.

6




& Advocacy v. Stewart, _ U.S. _,131 S.Ct. 1632,1637-38 (2011); Bd. of Trs. of the Univ. of

Alabama v. Garrettl 531 U.S. 356, 363 (2001); Puerto Rico Aqueduct & Sewer Auth. v. Metcalf

& Eddy, Inc., 506 U.S. 139, 144-45 (1993); Will v. Michigan Dep't of State Police, 491 U.S. 58,

66 (1989); Green v. Mansour, 474 U.S. 64,68 (1985) ("Green"). Neither the State of New York

nor the Secretary of State has consented to this suit, and Congress has not abrogated the

immunity of the State or its agencies and officials.

In Ex partie Young, 209 U.S.123 (1908), the Supreme Court carved out two narrow

exceptions to the immunity accorded under the Eleventh Amendment. First, Ex parte Young

held that a plaintilI may bring a claim in federal court against a state official who enforces an

unconstitutional statute. See Green, 474 U.S. at 68. Second, Ex parte Young held that federal

courts may grant prospective injunctive relief to prevent a continuing violation of federal law.

See Green, 474 U.S. at 68. As shown below, however, neither of these two exceptions has any

application to plaintiffs' claim against the Secretary of State in this action.

A. Plaintiffs Do Not, Nor Can They, Allege that the Statute Pursuant

to Which the Secretary of State Purportedly "Recognized" the

Municipal Status of the Village Is Unconstitut ional

The theory underlying the first Ex parte Young exception to the Eleventh Amendment

bar of federal suits against a state's agencies and officials is that an unconstitutional law is void,

and thus confers no authority or protection upon the official who enforces it. Hopkins v.

Clemson Agr. ColI. of S. Carolina, 221 U.S. 636, 644 (1911). A state agency or official that

acts within the bounds of constitutionally-granted statutory authority is, however, fully protected

by Eleventh Amendment immunity.

The first exception recognized by Ex parte Young Court has no application here. This is

so for the following reasons: (i) plaintiffs fail to allege (and cannot legitimately allege) that the

7




statute under which the State of New York purportedly "recognized" the municipal status of the

Village of Kiryas Joel is unconstitutional,l and (ii) the Secretary of State does not have a "special

relation" to the alleged harm to support any claim of liability on his part.

As stated above, the statute pursuant to which the State's supposed "recognition" of the

Village's municipal status took place is the Village Law. Article 2 of that law, which governs the

"incorporation" of a village, sets forth in detail the procedure whereby a "territory containing a

population of at least five hundred persons who are regular inhabitants thereof, as hereinafter

defined, may be incorporated as a village. . . ." See Village Law § 2-200(1). Article 2

provides, for example, that a "proceeding for the incorporation of such territory as a village shall

commence with a petition" and sets forth the "requirements for such petition" (§ 2-202); sets

forth the requirements for a "notice of hearing" and the procedure for a hearing regarding a

petition for incorporation (§§ 2-204 and 2-206); sets forth the procedure for determining whether

the petition complies with the requirements of Article 2 (§ 2-208); and provides when an

"election to detemline the question of incorporation" shall take place and how the election shall

be conducted (§§ 2-212 and 2-220).

None of these procedures involve the secretary of state. In fact, the secretary of state's

only involvement in the incorporation of a village takes place after a majority of the relevant

voters has voted in favor or incorporation, and after "the town clerk with whom the original of

the certificate of election was filed" prepares and delivers "a report of incorporation to the

secretary of state" and others. See Village Law § 2-232.

Section 2-234(1) of the Village Law provides that, "upon receipt of the report of

incorporation," the secretary of state "shall forthwith file same in his office and a certificate of

1 Nor do plaintiffs all lege, under Monell v. Dep't of Soc. Servs. of the City of N.Y., 436 U.S. 659 (1978),

the existence of any state policy or custom that resulted in the·violation of plaintiffs' constitutional rights.

8




incorporation shall certify, under the seal of his office to the clerk of each town in which any

portion of such territory is located that said report has been filed in his office giving the date of

filing thereof." See: Village Law § 2-234(1) (emphasis added).

As also stated above, the Secretary of State's records indicate that, in accordance with the

provisions of Village Law §2-234(l), on March 2, 1977, the then-secretary of state filed "in his

office" the Monroe Town Clerk's "report of incorporation" of the Village of Kiryas Joel and

acknowledged his receipt and filing of that report. (See Exhibit A to the Klein Aff.) That is the

act by which the office of the Secretary of State, pursuant to the specific direction of the

Legislature in §2-234of

the Village Law, gave "recognition" to the municipal statusof

the

Village of Kiryas Joel, in the language of paragraph 416 of plaintiffs' Amended Complaint.

But plaintiffs' Amended Complaint fails to allege -- and plaintiffs cannot legitimately

assert -- that the Village Law provisions pursuant to which the State ofNew York's "recognition"

of the municipal status of the Village took place is unconstitutional. Nor do plaintiffs identify

any action by which the Secretary of State sought to enforce an alleged unconstitutional state law

or otherwise violated plaintiffs' Constitutional rights. For this reason, the first Ex parte Young

exception is inapplicable.

Plaintiffs also fail to come within the first Ex parte Young exception because the

Secretary of State does not have a sufficient connection to plaintiffs' alleged harm to support any

claim against him. To name an officer of the state as a defendant in a suit to enjoin an alleged

unconstitutional aet, the officer must have some "special relation" to the enforcement of the

statute in question. Ex parte Young, 209 U.S. at 157. The court "can only direct affirmative

action where the officer having some duty to perform . . . refuses or neglects to take such action."

Ex parte Young, 209 U.S. at 158. The unidentified actions with respect to the "recognition" of

9




the Village of Kiryas Joel set forth in paragraph 416 of the Amended Complaint do not meet the

requirements of this exception.

As stated above, the secretary of state's statutory duty is to "forthwith file," and

acknowledge that he has filed, the town clerk's report of incorporation of a village. See Village

Law § 2-232(1). With respect to the Village of Kiryas Joel, the then-secretary of state duly

performed the ministerial, non-discretionary acts required of him, and did so on March 2, 1977.

Plaintiffs do not identify any action that the Secretary of State has either improperly done or

failed to do, much less one that allegedly violated plaintiffs' constitutional rights.

Further, the secretary of state does not have the authority, either pursuant to the Village

Law or any other law, to dissolve a village because of alleged constitutional infirmities in its

governance. The only statutory authority to dissolve a village is provided by Title 3 of Article

17A of the New York State General Municipal Law, which provides for dissolution of a

municipal entity other than a town following the commencement of dissolution proceedings

pursuant to "a resolution of the governing body of the local government entity to be dissolved

endorsing a proposed dissolution plan" or "elector initiative." See N.Y. Gen. Mun. Law § 773, et

seq.

Plaintiffs' mysterious and nebulous allegation in paragraph 416 of the Amended

Complaint fails to establish a "special relation" between the Secretary of State and the alleged

harm of which plaintiffs complain. Plaintiffs thus do not satisfy the first exception to the

Eleventh Amendment immunity set forth in Ex parte Young.

B. Plaintiffs' Request for Relief Against the Secretary of State -

Though Couched in the Form of an Injunction -- Does Not

Properly Seek to Prevent a Continuing Violation of Federal Law

As stated by the Supreme Court in Quem v. Jordan, 440 U.S. 332, 337 (1979), "a federal

10




court, consistent with the Eleventh Amendment, may enjoin state officials to conform their

future conduct to the requirements of federal law . . . . " See also Ippolito v. Meisel, 958 F. Supp.

155, 161 (S.D.N.Y. 1997) (holding that "federal courts can enjoin state officers acting in their

official capacity, as long as the injunction only governs the officer's future conduct and a

retroactive remedy is not provided") (emphasis added)).

Plaintiffs' daim for relief in paragraph G of the Wherefore clause, however, is in fact

retroactive in nature, and thus fails to meet the second Ex parte Young exception. See Green v.

Mansour, 474 U.S. 64, 68 (1985) ("We have refused to extend the reasoning of Ex parte Young,

however, to claims for retrospective relief').

The Supreme Court has defined a claim for retroactive relief as one that seeks to remedy

a past breach of a legal duty by state officials. Edelman v. Jordan, 415 U.S. 651, 676 (1974);

Papasan v. A l l a i r ~ , 478 U.S. 265, 278 (1986) ("Papasan"). Where, however, there is no

continuing violation of federal law, the Eleventh Amendment precludes a remedy, even if

requested in the form of an injunction or declaratory judgment rather than damages. See Green,

474 U.S.at 71; Papasan, 478 U.S. at 277-78. In determining whether the requested remedy is

prospective or retroactive, courts focus on the substance, rather than the form, of the relief

sought. Papasan, 478 U.S. at 279.

In New York City Health & Hosp. Corp. v. Perales, 50 F.3d 129, 130 (2d Cir. 1995), the

Second Circuit held that the "retroactive-prospective dichotomy of relief permissible under the

Eleventh Amendment hinges upon when . . . the [alleged] injury . . . occurs." In that case, the

Commissioner of the New York State Department of Social Services appealed from an order of

the district court dlirecting that the Department was obligated, by virtue of a prior judgment, to

provide full Medicaid reimbursement for medical services provided before the date of that prior

11




judgment but for which claims were not filed until after the date of the judgment. Id. at 132-33.

The Second Circuit reversed, holding that the date of injuries suffered by providers was the date

they were provide:d services, not the date their claims were denied, and concluded that the

Eleventh Amendment precluded retroactive application of the order invalidating the relevant

regulations. Id. at 136-37.

In this case, the only state conduct of which plaintiffs apparently complain -- the

"recognition" of the Village's municipal status -- occurred on March 2, 1977, when the then

secretary of state filed the Monroe Town Clerk's "report of incorporation" and acknowledged

that his office had filed that report. Those acts are discrete, completed actions, and do not

constitute "future conduct" which the Ex parte Young exception seeks to address. See Quem v.

Jordan, 440 U.S. at 337.

If, in fact, this Court were to determine that, as alleged in the Amended Complaint, the

Village's "very existence as a municipality violates the Establishment Clause of the First

Amendment," and further were to determine that, as a result, the Village should be dissolved,

then the Secretary of State will be bound by this Court's order. There is no basis, however, for

plaintiffs' request to "enjoin" the Secretary of State from recognizing the municipal status of the

Village, and plaintiffs' inclusion of a purported injunction in the Wherefore clause of their

Amended Complaint fails to satisfy the second Ex parte Young exception. For this additional

reason, plaintiffs' claim against the Secretary of State should be dismissed in all respects.

12




POINT II

PLAINTIFFS' CLAIM AGAINST THE SECRETARY OF

STATE ALSO FAILS TO STATE A CLAIM FOR RELIEF

Even if plaintiffs' claim against the Secretary of State were not barred by the Eleventh

Amendment -- which it is -- that claim still should be dismissed because it fails to state a claim

under § 1983. Under § 1983, a plaintiff must allege the defendant's direct or personal

involvement in the: alleged constitutional deprivation, and the individual named defendant must

in some way have "caused" the violation of the plaintiffs rights complained of.. S e e , ~ ,

Reynolds v. Giuliani, 506 F.3d 185, 191 (2d Cir. 2007) ("Reynolds"); Colon v. Coughlin, 58

F.3d 865,873 (2d Cir. 1995); Wright v. Smith, 21 F.3d 496,501 (2d Cir. 1994).

For example, in Reynolds, the plaintiffs, who were a class of applicants for food stamps,

Medicaid or cash assistance in New York City, brought a § 1983 class action against both City

and state officials, alleging, among other things, that state officials had failed to properly oversee

the City's administration of assistance programs in violation of the Due Process Clause and

governing statutes. Reynolds, 506 F.3d at 188. The state defendants moved to dismiss the

complaint against them, asserting, among other things, that the plaintiffs had failed to allege facts

on which relief could be granted. The district court denied the motion, holding that the state

defendants were liable to the plaintiffs on a theory of non-delegable duty, "under which theory

the City's violations gave rise, by operation of law, to corresponding claims against the state

defendants." Id. at 189.

The Second Circuit, however, reversed the district court's denial of the state defendants'

motion, holding that the state defendants did not have a non-delegable duty to ensure the City's

compliance with governing statutes and regulations and, thus, in the absence of a finding of

inadequate supervision, deliberate indifference or acquiescence or a causal link between the

13




State's "alleged SIllS of omISSIOn and the alleged violations," the City's deficiencies in

administering the programs could not, by themselves, form the basis for the state defendants' §

1983 liability. Id. at 193-94.

In this case, plaintiffs do not allege, and cannot show, that the Secretary of State "caused"

any deprivation of plaintiffs' constitutional rights. As stated above, plaintiffs do not even

identify how or when the "State of New York's recognition of the Village's municipal status"

took place, or allege in what way, if any, the Secretary of State, or any State agency or official,

supposedly caused plaintiffs' First Amendment rights to be violated.

Indeed, the only act by which the Secretaryof

State gave "recognition"to

the Village's

municipal status was the filing, as required by the express provisions of the Village Law, of the

Monroe Town Clerk's report of incorporation of the Village on March 2, 1977. Surely, that act

did not "cause" any deprivation of plaintiffs' constitutional rights. And plaintiffs have failed to,

and cannot, identify any subsequent act by the office of the Secretary of State which "caused"

any deprivation of plaintiffs' Constitutional rights. Finally, under the holding in Reynolds, the

Secretary of State has no duty to ensure that the Village's officials do not violate plaintiffs' First

Amendment rights, and plaintiffs have not even alleged otherwise.

Accordingly, plaintiffs' claim against the Secretary of State fails to state a claim upon

which relief can be granted. For this additional reason, the Secretary of State should be

dismissed from this action with prejudice.

14




CONCLUSION

For all the foregoing reasons, defendant Cesar A. Perales, sued herein in his official

capacity as acting New York State Secretary of State, respectfully requests that the Court grant

his motion to dismiss him from this action in all respects.

Dated: New York, New York

August 1,2011

ERIC T. SCHNEIDERMAN

Attorney General of the State ofNew York

Attorney for Defendant Cesar A. Perales

By: - 2 l ~ { L : Mark E. Klem (M -5145)

Assistant Attorney General

120 Broadway, 24th Floor

New York, New York 10271

(212) 416-8888

[email protected]

15




CERTIFICATE OF SERVICE

This is to certify that the undersigned caused a copy of the annexed memorandum of law in

support ofthe motion to dismiss ofdefendant, Cesar A. Perales, sued herein in his capacity as acting

New York State Secretary of State, to be served via ECF, on August 1,2011, on the following

attorneys of record for the parties in this action:

Michael H. Sussman, Esq.

Sussman & Watkins

[email protected]

Attorney for Plaintiffs

David L. Posner, Esq.

McCabe & Mack LLP

[email protected]

Attorney for Defendant Village of Kiryas Joel

Brian S. Sokoloff

Sokoloff Stem LLP

[email protected]

Attorney for Defendants Jacob Reisman, Moses Goldstein, Jacob

Freund, Samuel Landau and Abraham Weider

Carl S. Sandel, Esq.

Morris Duffy Alonso & Faley

[email protected]

Attorney for Defendant Moses Witriol

Richard M. Mahon, Esq.

Tarshis, Catania, Liberth, Mahon & Milligram

[email protected]

Attorney for Defendants Congregation Yetev Lev D'Satmar of

Kiryas Joel and David Ekstein

James V. Galvin, Esq.

MacVean, Lewis, Sherwin & McDermott, P.C.

[email protected]

Attorney for Defendant Town ofMonroe

Dated: New York, New York

August 1,2011

/s/ Mark E. Klein

Mark E. Klein (MEK 5145)


Documents

DOS Support of Motion