Court Declines To Exercise Supplemental Jurisdiction Over Article 78 Claim In Hamptons Eruv Litigation Raising Multiple Federal Claims

Magistrate Judge Kathleen Tomlinson again addressed the ongoing effort to create a Hamptons eruv, in a September 24, 2014 order in East End Eruv Association v. Town of Southampton, et al., 13 CV-4810 (AKT) (EDNY Sept. 24, 2014). An eruv is “an unbroken delineation of an area” that allows Jews “with certain religious beliefs to carry or push objects from place to place within the area during the Sabbath and Yom Kippur.” Slip op. 1. The demarcation of the eruv would be established by attaching “wooden or plastic strips known as ‘lechis’” to the sides of telephone and utility poles. Id. Plaintiffs’ proposed eruv would eventually encompass parts of Southampton, Westhampton Beach, and Quogue. See id. at 1-2.
We last blogged about the ongoing Hamptons eruv dispute here, in discussing Judge Tomlinson’s June 16, 2014 order in the related case Verizon v. The Village of Westhampton Beach, et al., 11 Civ. 252 (AKT) (EDNY June 16, 2014). Magistrate Judge Tomlinson there ruled that Verizon and the Long Island Power Authority could enter into agreements with the East End Eruv Association (“EEEA”) allowing the attachment of lechis to the utilities’ poles. In addition to the Verizon and Southampton cases, there is a third case brought by EEEA against Westhampton Beach, East End Eruv, et al. v. Village of Westhampton Beach, 11 CV 213. See Slip op. 1 n.1.
In her September 24 order, Magistrate Judge Tomlinson granted Southampton’s motion to dismiss to the extent of dismissing without prejudice plaintiffs’ sixth cause of action, which the Judge found was in substance a state-law Article 78 claim, and staying plaintiffs’ remaining claims pending resolution of the Article 78 claim in New York State court. Slip op. 27, 38. Although the sixth cause of action did not mention Article 78 expressly, it incorporated the Article 78 legal standard, seeking a declaratory judgment that the Town’s denial of plaintiffs’ application to allow attachment of 28 lechis to 15 utility poles was arbitrary and capricious, and an injunction directing the Southampton Zoning Board to issue any permits necessary for plaintiffs to construct the eruv. See id. at 26-27. Subject matter jurisdiction was premised on supplemental jurisdiction under 28 U.S.C. § 1367, based on plaintiffs’ assertion of claims under the First and Fourteenth Amendments, 42 U.S.C. § 1983, and the federal Religious Land Use and Institutionalized Persons Act.
Judge Tomlinson declined to exercise supplemental jurisdiction over the Article 78 claim, consistent with the rulings of the “overwhelming majority of district courts.” Slip op. 29. The court relied on Carver v. Nassau County Interim Fin. Auth., 730 F.3d 150 (2d Cir. 2013), in which the Second Circuit declined to decide whether Article 78 itself deprives the federal courts of subject matter jurisdiction, but “recognized the State preference to handle these claims on its own.” Slip op. 31-32. Judge Tomlinson noted that when the Article 78 claim dismissed in that case was later adjudicated in state court, the state court “reached a decision directly contrary to that of the federal district court.” Id. at 32. While the exercise of supplemental jurisdiction might be warranted in “unusual circumstances,” id. at 35, Article 78 is a “’novel and special creation of state law,’” and a “’purely state procedural remedy.’” Id. at 33 (quoting Birmingham v. Ogden, 70 F. Supp. 2d 353 (S.D.N.Y. 1999). Apart from the exceptional case, therefore, supplemental jurisdiction under 28 U.S.C. § 1367 will not lie over an Article 78 claim, even if most or all of the accompanying causes of action are federal.