     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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