Ellentuck v. Klein

Decision Date04 January 1978
Docket NumberNo. 69,D,69
Citation570 F.2d 414
PartiesIrving ELLENTUCK and Mildred Ellentuck, Mark R. Bryce and Roberta Bryce, A. Gerard Hyde, Saul Novak and Phyllis Novak, Leonard Savino and Kevin P. Wilkinson and Margaret Wilkinson, on their own behalf and on behalf of other adjoining property owners who objected to and object to the granting of a variance to the subject premises permitting a Class A multiple dwelling therein, and all others similarly situated, Plaintiffs-Appellants, v. Joseph B. KLEIN, Philip Agusta, Howard B. Hornstein, Henry M. Carroll and John P. Walsh, as Commissioners constituting the Board of Standards and Appeals of the City of New York, Philip Agusta, Henry M. Carroll and John B. Walsh, Individually, Jeremiah T. Walsh as Commissioner of Buildings of the City of New York, H. Irving Sigman, as Borough Superintendent of the Borough of Queens, and Individually, Erling Karlsen, as Inspector of the Department of Buildings of the City of New York and Individually, Joseph Stein, as former Commissioner of Buildings of the City of New York, Kimball Construction Co. Inc., John Kimball and Marie A. Kimball, as officers and directors of the Kimball Construction Co. Inc., and Individually, Richmond Hill Savings Bank, Julius Granirer, the Honorables M. Henry Martuscello, Henry J. Latham, John P. Cohalan, Jr., Samuel Rabin and Vito J. Titone, as Justices of the Supreme Court of the State of New York, Appellate Division, Second Department, and the Honorable Alfred D. Lerner, as Judge of the Supreme Court of the State of New York, County of Queens, Defendants-Appellees. ocket 77-7209.
CourtU.S. Court of Appeals — Second Circuit

Dora Aberlin, New York City, for plaintiffs-appellants.

Ronald E. Sternberg, New York City (W. Bernard Richland, Corp. Counsel, L. Kevin Sheridan, New York City, of counsel), for municipal appellees.

Sheldon Lobel, Woodside, N. Y. (David B. Kweller, Woodside, N. Y., of counsel), for appellees Kimball Const. Co., Inc., John Kimball and Marie Kimball.

Lincoln D. Harkow, Jamaica, N. Y. (Frey & Harkow, Jamaica, N. Y., of counsel), for appellees Richmond Hill Sav. Bank and Julius Granirer.

Paul E. Dahlman, Deputy Asst. Atty. Gen. of State of N. Y., New York City (Louis J. Lefkowitz, Atty. Gen. of State of N. Y., and Samuel A. Hirshowitz, First Asst. Atty. Gen., New York City, of counsel), for Justices of the Appellate Division and Supreme Court.

Before LUMBARD, MOORE and FEINBERG, Circuit Judges.

MOORE, Circuit Judge:

Plaintiffs are property owners in Belle Harbor, a seaside section of Queens, New York. Aggrieved by a decision of the Building Department of the City of New York to grant an alteration permit to a builder in the area permitting the conversion of an existing building into a multiple dwelling, they sought to have the permit revoked as contrary to New York law. Their struggles led to a long course of litigation in the courts of the State of New York and, most significantly, to the dismissal of their appeal on constitutional grounds by the New York Court of Appeals "upon the ground that no substantial constitutional question (was) directly involved". Ellentuck v. Klein, 39 N.Y.2d 743, 384 N.Y.S.2d 1030 (1976). Plaintiffs did not seek review from the Supreme Court of the United States, but rather commenced the instant civil rights action in the federal district court for the Southern District of New York, asserting four separate causes of action against several groups of the principals in the New York land use dispute. The district court dismissed the entire complaint with prejudice on the grounds of res judicata, collateral estoppel, and "principles of federal-state comity". It is from this order of dismissal that plaintiffs appeal. A meaningful analysis of appellants' claims is only possible after a more detailed description of the prior proceedings.


On June 14, 1972, defendant Kimball Construction Company ("Kimball") purchased a three-story-and-basement wood frame building located on Rockaway Beach Boulevard, Belle Harbor, from the Sisters of Reparation of the Congregation of Mary, Inc. Over a period of some twenty years, the Sisters had used the premises as a convent primarily as a home for homeless and/or aged women. At the time the building was purchased by Kimball, it contained approximately 24 bedrooms, 10 bathrooms, a large dining room, a commercial kitchen, a laundry room, and a garage.

Prior to making the purchase, neighborhood resident John Kimball, an officer of Kimball Construction Company and an individual defendant in this suit, reviewed records on file at the Queens office of the New York City Department of Buildings. 1 According to those records, the building had previously been accepted as a Class "B" multiple dwelling (rooming house) and an alteration application submitted in 1950 showed "existing legal use" as a "Class 'B' Heretofore Converted Dwelling". 2

On or about June 30, 1972, John Kimball filed plans with the Department of Buildings in order to obtain a permit to convert the premises to a Class "A" multiple dwelling (apartment house for permanent residents). The proposed conversion was seemingly permitted under the New York City Zoning Resolution, even in the R2 Zoning District (single family detached residences) encompassing the Belle Harbor area, since a Class "B" multiple dwelling constituted a nonconforming use and the Resolution provided for alteration from one nonconforming use to another nonconforming use. New York City Zoning Resolution § 52-61, effective December 15, 1961.

Thus, plans submitted by Kimball were approved pursuant to instructions from Erling Karlsen, 3 Inspector for the Department of Buildings for the Borough of Queens, and on November 17, a construction permit was issued by Borough Superintendent H. Irving Sigman, a defendant in the first cause of action. Pursuant to the permit, work was commenced on the conversion of the building into a dwelling which was to contain 14 apartments plus an apartment for a superintendent.

Shortly thereafter, the Belle Harbor Property Owners Association, Inc., sought to have the permit invalidated. Several of their representatives met with Borough Superintendent Sigman and with then-Commissioner of Buildings of the City of New York, Joseph Stein, 4 to discuss the propriety of revoking the permit. Sigman, by interdepartmental memorandum to Stein, expressed his opinion that the plans had been properly approved, stating that the dwelling had been accepted as a Class "B" multiple dwelling since 1945 and recorded as such in the records of the Department. Sigman also expressed his belief that the resulting condition (i. e., the existence of a multiple dwelling in a neighborhood zoned for one-family residences) might be undesirable, but that, since the conversion seemed in all respects consistent with the law, the issuance of the permit was a matter "over which we have no control". 5

After further communications among all concerned, Stein notified the President of the Property Owners Association that the request to revoke the permit was being denied, but that, as a result of the objections, he was directing that the entire building be equipped with sprinklers and that each dwelling unit be provided with a second means of egress.

Still dissatisfied, the adjacent landowners decided that legal proceedings should be instituted to vindicate their interests. 6 At that time there existed legal impediments to suing as an association in the State of New York. Hence, several of the landowners in the area joined in an application to the New York Supreme Court, Queens County, to obtain a declaration that the permit was void. 7 The defendants named in the State court suit were Stein as the Building Commissioner, Sigman as the Borough Superintendent, Karlsen as the Buildings Department Examiner, and Kimball Construction Company.

In the State suit, the plaintiffs attempted to prove that, despite the Building Department Records' indication that the subject building was a Class "B" multiple dwelling, that nonconforming use had been abandoned 8 because the previous owners of the building, the Sisters of Reparation of the Congregation of Mary, Inc., had used the building as a convent; 9 and given the abandonment which resulted in a conforming use, the new owner had lost the right to maintain the nonconforming use and could not convert the premises to a second nonconforming use under the Zoning Resolution.

After denial of a temporary stay preventing construction, a non-jury trial was held; the complaint was dismissed on the ground that the prior use had been conforming, as indicated by the Building Department records. The property owners appealed.

During the pendency of the appeal, Kimball completed the conversion process and received a certificate of occupancy as a Class "A" multiple dwelling and several tenants moved in. On April 29, 1974, approximately one and one-half months after the certificate of occupancy was issued, and at a time when five tenants were residing in the building, the Appellate Division, Second Department, reversed on the law and on the facts. The appellate court stated that it

"(f)ound the evidence overwhelming (e. g., Sisters' testimony, tax exemptions, combustible permit fee exemption, 1968-1969 telephone directory, other documents, etc.) that from approximately 1951 to 1972 the Sisters operated the premises as a convent and, on a charitable non-profit basis, primarily as a home for homeless and/or aged women. This usage is a conforming usage under R-2 classification (detached residences) imposed by the zoning ordinance resolution that became effective in December 1961. . . . (W)e find that the evidence clearly established that the Class B classification was clearly abandoned by the Sisters' conforming usage from 1952 until the 1972 transfer to Kimball and that, in any event, in view of the character of the neighborhood, the nature...

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