13‐1401‐cv (L)
Verizon New York, Inc., et al., v. Jewish People for the Betterment of Westhampton Beach
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER
JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER
THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A
SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
Square, in the City of New York, on the 3rd day of March,, two thousand
fourteen.
PRESENT: RICHARD C. WESLEY,
CHRISTOPHER F. DRONEY,
Circuit Judges,
RONNIE ABRAMS,
Judge.*
____________________________________________
VERIZON NEW YORK INC., LONG ISLAND LIGHTING COMPANY, AKA
LIPA,
Plaintiffs ‐ Counter‐Defendants ‐ Appellees,
EAST END ERUV ASSOCIATION, INC., Marvin TENZER, Morris TUCHMAN,
Clinton GREENBAUM, Alan H. SCHECHTER, Carol SCHECHTER,
Plaintiffs ‐ Appellees, 13‐1401 (Lead)
13‐1417 (Con)
Judge Ronnie Abrams, of the United States District Court for the Southern
*
District of New York, sitting by designation.
v.
JEWISH PEOPLE FOR THE BETTERMENT OF WESTHAMPTON
BEACH,
Movant ‐ Appellant,
VILLAGE OF WESTHAMPTON BEACH, Conrad TELLER, individually and in
his official capacity as Mayor of the Village of Westhampton Beach, Toni‐Jo
BIRK, Leola FARRELL, Joan S. LEVAN, Hank TUCKER, each individually and in
their official capacities as Trustees of the Village of Westhampton Beach,
VILLAGE OF QUOGUE, Peter SARTORIUS, individually and in his official
capacity as Mayor of the Village of Quogue, Randy CARDO, Jeanette OBSER,
Kimberley PAYNE, Ted NECARSULMER, each individually and in their official
capacities as Trustees of the Village of Quogue, TOWN OF SOUTHAMPTON,
Anna THRONE‐HOLST, individually and in her official capacity as Supervisor
of the Town of Southampton, Nancy S. GRABOSKI, Christopher R. NUZZI,
James W. MALONE, Bridget FLEMING, each individually and in their official
capacities as members of the Town Council of the Town of Southampton, Toni‐Jo
BIRK, Leola FARRELL, Joan S. LEVAN, Hank TUCKER, each individually and in
their official capacities as Trustees of the Village of Westhampton Beach,
VILLAGE OF QUOGUE, Peter SARTORIUS, individually and in his official
capacity as Mayor of the Village of Quogue, Randy CARDO, Jeanette OBSER,
Kimberley PAYNE, Ted NECARSULMER, each individually and in their official
capacities as Trustees of the Village of Quogue, TOWN OF SOUTHAMPTON,
Anna THRONE‐HOLST, individually and in her official capacity as Supervisor
of the Town of Southampton, Nancy S. GRABOSKI, Christopher R. NUZZI,
James W. MALONE, Bridget FLEMING, each individually and in their official
capacities as members of the Town Council of the Town of Southampton,
VILLAGE OF QUOGUE, Peter SARTORIUS, individually and in his official
capacity as Mayor of the Village of Quogue, Randy CARDO, Jeanette OBSER,
Kimberley PAYNE, Ted NECARSULMER, each individually and in their official
capacities as Trustees of the Village of Quogue, TOWN OF SOUTHAMPTON,
Anna THRONE‐HOLST, and in her official capacity as Supervisor of the Town of
Southampton, Nancy S. GRABOSKI, Christopher R. NUZZI, James W.
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MALONE, Bridget FLEMING, each individually and in their official capacities as
members of the Town Council of the Town of Southampton,
Defendants.**
____________________________________________
FOR APPELLANT: JONATHAN SINNREICH (Timothy F. Hill,
on the brief) Sinnreich Kosakoff & Messina
LLP, Central Islip, NY
FOR APPELLEES Verizon New ERICA S. WEISGERBER, Debevoise &
York Inc., et al. Plimpton LLP, New York, NY, (Michael E.
Wiles, Debevoise & Plimpton LLP, New
York, NY, Zachary Murdock, Lazer
Aptheker Rosella & Yedid PC, Melville, NY,
on the brief)
FOR APPELLEES East End YEHUDAH L. BUCHWEITZ (Robert G.
Eruv Association, et al. Sugarman, on the brief), Weil Gotshal &
Manges LLP, New York, NY
____________________________________________
Appeal from the United States District Court for the Eastern District of
New York (Leonard D. Wexler, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED AND DECREED that the order of the district court be and hereby
is AFFIRMED.
Movant, Jewish People for the Betterment of Westhampton Beach, (a.k.a.
Jewish People Opposed to the Eruv, hereinafter “JPOE”) appeals from an order
The Clerk of the Court is directed to amend the official caption as set forth
**
above.
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denying its motion to intervene in two separate suits in the United States District
Court for the Eastern District of New York.
The East End Eruv Association (“EEEA”) seeks to build an “eruv,” a
symbolic Jewish enclosure, in several Long Island communities. To this end,
EEEA contracted with Verizon New York, Inc., the local phone company, and
Long Island Power Authority (“LIPA”), the local power company, for the right to
use their utility poles and public rights of way in the erection of the eruv. Several
municipalities in which the eruv is to be located then threatened action against
Verizon and LIPA pursuant to various local ordinances.
Subsequently, EEEA sued the municipalities alleging, inter alia, that their
attempt to block the eruv violated the Free Exercise Clause. Verizon and LIPA
also sued the municipalities seeking a declaratory judgment resolving their
conflicting obligations to the municipalities and EEEA. The municipalities
answered, and have argued that the enforcement of their ordinances does not
violate EEEA’s Free Exercise rights, but that the eruv’s presence on public rights
of way would violate the Establishment Clause. JPOE has now moved to
intervene as a defendant in both actions, seeking to assert the same
Establishment Clause argument. Following briefing and a short oral hearing, the
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district court denied JPOE’s motion from the bench and confirmed its ruling in a
docket entry. JPOE now appeals this order.
The record makes clear several reasons for the district court’s ruling. We
are free to affirm based on any of these. See Beal v. Stern, 184 F.3d 117, 122 (2d Cir.
1999). Among these justifications for the denial of JPOE’s motion is that JPOE
and the municipal defendants make the same arguments and have the same
objective. “Where there is an identity of interest, as here, [between a current
party to the litigation and the intervenor] the [intervenor] must rebut the
presumption of adequate representation by the party already in the action.”
Butler, Fitzgerald & Potter v. Sequa Corp., 250 F.3d 171, 179‐80 (2d Cir. 2001). Since
JPOE has failed to show why the municipal defendants do not adequately
represent any interest it may have in the case, we affirm.
For the reasons stated above, the order of the district court is AFFIRMED
with costs to all appellees.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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