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December 2, 1985

MINDICH DEVELOPERS, INC., Plaintiff, against FREDERICK J. HUNZIKER, JR., et al., Defendants

The opinion of the court was delivered by: BRIEANT

Brieant, J.

In this civil rights action brought pursuant to 42 U.S.C. § 1983, plaintiff moves for partial summary judgment on the issue of liability only, against defendants, governing officials of the City of Rye, and the City itself. The motion is based on the theory that the plaintiffs are collaterally estopped as a matter of law by a judgment, described below, of the Supreme Court of the State of New York between the parties, from defeating liability in this case.

 Because the Court concludes that defendants are collaterally estopped, both on the issue of whether they deprived plaintiff of its rights without due process of law, and on the further issue of whether they failed to act with such a degree of good faith as to be entitled to qualified immunity for such conduct, the Court grants the motion.

 The Supreme Court of the United States, in an effort to stem the horrendous flow of civil rights litigation in the wake of Monroe v. Pape, 365 U.S. 167, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1960), established a new rule in its decision in Migra v. Warren City School District, Board of Education, et al., 465 U.S. 75, 79 L. Ed. 2d 56, 104 S. Ct. 892 (1984). The rule of Migra essentially holds that by reason of the Constitution's Full Faith and Credit Clause, as implemented by 28 U.S.C. § 1738, this Court must "give to a state court judgment the same preclusive effect as would be given that judgment under the law of the State in which the judgment was rendered." Migra at 81. In Migra the Supreme Court mentioned as inconsistent with its determination the prior decision of our Court of Appeals in Lombard v. Board of Education of the City of New York, 502 F.2d 631 (2d Cir. 1974), cert. denied 420 U.S. 976, 43 L. Ed. 2d 656, 95 S. Ct. 1400 (1975). *fn1" Recently, in Genova v. Town of Southampton, 776 F.2d 1560 (2d Cir., Nov. 18, 1985, Dkt. 85-7435), a panel of our Court of Appeals, applied defensive issue preclusion to a prior Article 78 Proceeding between the parties in the New York court. The New York courts had held against the appellant on factual issues that were central to the constitutional claim he had brought in federal court. Our Court of Appeals accordingly affirmed the dismissal of the appellant's § 1983 claim and held that:

"Under Migra, appellant may not relitigate these factual issues in a federal forum if New York law would bar him from doing so in a subsequent suit in state court. See also Allen v. McCurry, 449 U.S. 90, 66 L. Ed. 2d 308, 101 S. Ct. 411 (1980)."

 Applying the rule of Migra to a New York judgment, as we must in this case, this Court finds that New York uses a transactional test for resolving issues of res judicata and collateral estoppel, and regards all of those factual and legal issues arising out of the facts of the transaction sued on, which were raised or could have been raised, as merged in the final judgment of a court of record. All such issues are thereby precluded, regardless of the identity of the legal theory or theories relied on in the prior action, or the later action. O'Brien v. City of Syracuse, 54 N.Y.2d 353, 357, 445 N.Y.S.2d 687, 429 N.E.2d 1158 (1981).

 We must now advert to the facts of this particular case, as were found in prior unreported state court litigation, affirmed by Memorandum Order in Mindich Developers, Inc. v. Hunziker, 105 A.D.2d 749, 481 N.Y.S.2d 402 (2d Dept. 1984).

 It is not seriously disputed for purposes of this motion that plaintiff owned a parcel of vacant property in the City of Rye. This parcel had frontage and a clear legal right of access onto a residential street known as Captain's Lane, and also on Rye Road, a more heavily traveled highway. Plaintiff purchased the property on August 6, 1982 intending to develop the parcel for single-family residence purposes. As such an owner of property, Mindich was entitled, upon compliance with all of the applicable state and local regulatory codes and procedures, to obtain a permit and approval for subdivision of the property and for construction of single-family residences thereon.

 After an unsuccessful application for a variance to the Board of Appeals which was rejected on August 5, 1982, and which need not concern us, the plaintiff submitted fully conforming plans to the Building Department of the City of Rye on March 28, 1983. On April 4, 1983 the Board of Architectual Review of the City of Rye, approved the plaintiff's plans. It was clear at all times thereafter that because the plans submitted were in compliance with the Rye City Code and had been approved by the Board of Architectural Review, the Building Inspector should have granted a building permit for a house. No approval on the part of defendants was required.

 The record on appeal in the Supreme Court of the State of New York, Appellate Division, Second Department in Mindich Developers, Inc. v. Hunziker, et al., Westchester Co. Sup. Ct. Index No. 11988-83 was docketed in this action on September 27, 1985. All defendants herein were parties to that Article 78 Proceeding. The Hon. W. Denis Donovan, Justice of the Supreme Court, made the following findings of fact in that case, among others:

"Petitioner [Mindich Developers, Inc.] has met all requirements imposed by local laws including gaining approval of the latest building plans which are in total conformity with all zoning requirements and require no variances and which have been approved by the Architectural Review Board. Under such conditions the Building Inspector has little, if any, discretion but to do that which the law imposes on him, i.e., issue the permit.
Under pressure from a highly vocal homeowners' association in the area which had taken rather extreme steps to block the construction of this contemporary home ... the City Council [defendants Hunziker, et al.] has directed the building inspector not to issue a permit on spurious grounds of 'traffic hazard'. Even assuming, without deciding, that the City Council has such power in the face of a lack of local ordinance prescribing the lead agency for a determination, the Council had no factual basis for such a conclusion. It relied on a 1982 decision of its Planning Board when petitioner sought a permit for a different set of plans requiring variances. A reading of that decision denying the earlier application on several grounds only one of which was traffic safety considerations, fails entirely to indicate any facts or studies for that particular conclusion and seems then, as does the action of the Council now, to be a complete capitulation to the resistance of surrounding homeowners, a resistance based on fears of diminished property values (similarly entirely unfounded) and the aesthetic objections of a next door neighbor. Indeed, the demands of the neighbor and docile alternative proposed by the Council to face the proposed home and driveway on a different busier street at the mouth of an intersection at the end of a curve appears to this Court to present a greater hazard than the presently planned access onto the quieter straighter street now planned. The Court finds that respondent's actions in this instance are arbitrary, capricious, overburdensome, confiscatory and not just denying petitioner of the right to reasonable use of his property, but a denial to him of the equal protection of the law." [Matter in brackets added].

 On appeal, the Appellate Division of the Supreme Court, which also has fact finding powers, held as follows:

"In a proceeding pursuant to CPLR article 78 to review a determination of the City Council of the City of Rye dated May 18, 1983, denying petitioner a building permit, the appeal is from a judgment of the Supreme Court, Westchester County (Donovan, J.) entered September 6, 1983, which granted the petition, ...

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