Yeshiva Imrei Chaim Viznitz of Boro Park, Inc. v. City of New York

11-3485-cv
Yeshiva Imrei Chaim Viznitz v. City of New York, et al.

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.

1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 13th day of September, two thousand twelve.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 SUSAN L. CARNEY,
9 Circuit Judge,
10 JOHN GLEESON,
11 District Judge.*
12
13 - - - - - - - - - - - - - - - - - - - -X
14 YESHIVA IMREI CHAIM VIZNITZ OF BORO
15 PARK, INC.,
16 Plaintiff-Appellant,
17
18 -v.- 11-3485-cv
19
20 CITY OF NEW YORK, NEW YORK CITY
21 DEPARTMENT OF BUILDINGS, NEW YORK CITY
22 BOARD OF STANDARDS & APPEALS, FIRE
23 DEPARTMENT OF NEW YORK, PATRICIA J.

*
The Honorable John Gleeson, United States District
Judge for the Eastern District of New York, sitting by
designation.
1
 1 LANCASTER, in her official capacity as
2 former DOB Commissioner, MEENAKSHI
3 SRINIVASAN, in her official capacity
4 as BSA Chairperson, ROBERT LIMANDRI,
5 in his official capacity as DOB
6 Commissioner, JOHN DOES 1-10, JANE
7 DOES 1-10,
8 Defendants-Appellees.
9 - - - - - - - - - - - - - - - - - - - -X
10
11 FOR APPELLANT: Stuart A. Klein, Law Offices of
12 Stuart A. Klein, New York, NY.
13
14 FOR APPELLEES: Michael A. Cardozo (Edward F.X.
15 Hart, Drake A. Colley, on the
16 brief), Corporation Counsel of
17 the City of New York, New York,
18 NY.
19
20 Appeal from a judgment of the United States District
21 Court for the Southern District of New York (Baer, J.).
22
23 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
24 AND DECREED that the judgment of the district court be
25 AFFIRMED.
26
27 Yeshiva Imrei Chaim Viznitz of Boro Park, Inc.
28 (“Yeshiva”) alleges that it is suffering discriminatory
29 treatment at the hands of the City of New York, et al.,
30 (collectively, the “City”) regarding operation of a catering
31 establishment in its residentially-zoned building at 1824
32 53rd Street (the “Building”). It appeals from the July 27,
33 2011 opinion and order of the United States District Court
34 for the Southern District of New York (Baer, J.) granting
35 the City’s motion for summary judgment on all claims. This
36 Court reviews the district court’s grant of summary judgment
37 de novo. In re “Agent Orange” Prod. Liab. Litig., 517 F.3d
38 76, 87 (2d Cir. 2008). We assume the parties’ familiarity
39 with the underlying facts, the procedural history, and the
40 issues presented for review.
41
42 The district court determined that the claims were
43 barred by collateral estoppel. State law determines the
44 preclusive effect of state court judgments. Marvel
45 Characters, Inc. v. Simon, 310 F.3d 280, 286 (2d Cir. 2002).
46 “Under New York law, collateral estoppel bars relitigation

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 1 of an issue when (1) the identical issue necessarily was
2 decided in the prior action and is decisive of the present
3 action, and (2) the party to be precluded from relitigating
4 the issue had a full and fair opportunity to litigate the
5 issue in the prior action.” In re Hyman, 502 F.3d 61, 65
6 (2d Cir. 2007) (citations omitted).
7
8 The district court properly concluded that all five of
9 Yeshiva’s federal claims were precluded by prior state court
10 judgments. Yeshiva had two full and fair opportunities to
11 litigate its grievances: at the initial Article 78
12 proceeding, and then again through its motion for a renewal.
13 Yeshiva’s arguments on appeal are based on the idea that the
14 issues before the district court were different than the
15 ones addressed by the state courts.
16
17 First, Yeshiva argues that it now conducts its wedding
18 ceremonies in a location different from the one it used at
19 the time of the Article 78 proceedings. Specifically,
20 Yeshiva moved the ceremonies from the street in front of the
21 Building to “that portion of the roof of the first floor
22 that is formed because the second floor is set back.”
23 Yeshiva argues that this adjustment raises a new legal
24 question because the location of the weddings was a factor
25 in the Department of Building’s (“DOB’s”) accessory use
26 analysis. However, this shift is a distinction without a
27 difference, at least insofar as the collateral estoppel
28 analysis is concerned. The weddings still take place
29 “outside” the synagogue, which was the critical factor for
30 the Board of Standards and Appeals. Yeshiva’s
31 misconstruction of the City’s inquiry fails to raise a new
32 legal issue that was not previously decided by the state
33 court.
34
35 Second, Yeshiva claims that it suffered new incidents
36 of discrimination after the conclusion of the Article 78
37 litigation. The only new evidence consists of three
38 violations it received from the DOB and Fire Department of
39 New York. But Yeshiva does not show how the issues
40 regarding this later alleged discrimination are
41 distinguished from those previously considered by the state
42 court. All of the evidence that Yeshiva proffers regarding
43 similarly situated institutions was reviewed during the
44 state court proceedings.
45
46 Yeshiva cites Davis v. Halpern for the idea that “a
47 continuing course of conduct, if true, often creates a new

3
 1 and separate claim, not barred by the decision in a single
2 prior suit.” 813 F.2d 37, 40 n.4 (2d Cir. 1987) (emphasis
3 added). Yeshiva misconstrues Davis. Collateral estoppel
4 may well be appropriate even if certain facts have changed.
5 See, e.g., N.L.R.B. v. United Techs. Corp., 706 F.2d 1254,
6 1259-61 (2d Cir. 1983) (applying collateral estoppel, even
7 though some new developments had occurred and res judicata
8 was foreclosed). Davis says “often,” not “always.” Absent
9 a meaningful, substantive change that alters the legal issue
10 at hand, collateral estoppel operates. Otherwise, losing
11 state plaintiffs with any claim of ongoing discrimination
12 could simply wait a few days and relitigate in federal
13 court. All Yeshiva points to now are some legally
14 irrelevant factual developments that occurred after the
15 state court decisions.
16
17 We agree with the district court that the state court
18 necessarily decided the issues of whether the catering hall
19 was an accessory use and whether the City had discriminated
20 against Yeshiva in ruling that its zoning decisions were
21 neither arbitrary nor capricious. Yeshiva was given a full
22 and fair opportunity to litigate those issues. Collateral
23 estoppel was therefore appropriate.
24
25 Finally, while the district court’s discussion of the
26 Rooker-Feldman doctrine might be questioned in the wake of
27 the Supreme Court’s limiting Exxon Mobil Corp. v. Saudi
28 Basic Indus. Corp. decision, 544 U.S. 280, 284 (2005), we
29 need not sort that out because it had no bearing on the
30 outcome of the case.
31
32 Finding no merit in Yeshiva’s remaining arguments, we
33 hereby AFFIRM the judgment of the district court.
34
35
36 FOR THE COURT:
37 CATHERINE O’HAGAN WOLFE, CLERK
38
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