RRI Realty Corp. v. Incorporated Village of Southampton

• Decision Date: 27 June 1985
• Docket Number: D,No. 1117,1117
• Citation: 766 F.2d 63
• Parties: RRI REALTY CORP., Plaintiff-Appellee, v. The INCORPORATED VILLAGE OF SOUTHAMPTON, Roy L. Wines, Jr., Mayor, Orson D. Munn, Jr., Paul Parash, Charles F. Schreier, Jr. and Richard L. Fowler, Constituting the Board of Trustees of the Village of Southampton, William Hattrick, Jr., Carlos Nadal, Jacob Buchheit, Elise Korman and Marvin Dozier, Constituting the Zoning Board of Appeals of the Village of Southampton, Sherburne Brown, Courtland Smith, Victor Finalborgo, John Winters and Morley A. Quatroche, Constituting the Board of Architectural Review of the Village of Southampton and Eugene R. Romano, the Building Inspector of the Village of Southampton, Defendants-Appellants. ocket 84-9019.
• Court: U.S. Court of Appeals — Second Circuit

Page 63

766 F.2d 63

RRI REALTY CORP., Plaintiff-Appellee, v. The INCORPORATED VILLAGE OF SOUTHAMPTON, Roy L. Wines, Jr. Mayor, Orson D. Munn, Jr., Paul Parash, Charles F. Schreier Jr. and Richard L. Fowler, Constituting the Board of Trustees of the Village of Southampton, William Hattrick Jr., Carlos Nadal, Jacob Buchheit, Elise Korman and Marvin Dozier, Constituting the Zoning Board of Appeals of the Village of Southampton, Sherburne Brown, Courtland Smith Victor Finalborgo, John Winters and Morley A. Quatroche, Constituting the Board of Architectural Review of the Village of Southampton and Eugene R. Romano, the Building Inspector of the Village of Southampton, Defendants-Appellants.

No. 1117, Docket 84-9019.

United States Court of Appeals, Second Circuit.

Argued April 24, 1985.

Decided June 24, 1985.

As Modified June 27, 1985.

Stuart A. Summit, New York City (Burns Summit Rovins & Feldesman, Glenn S. Goldstein, New York City, of counsel), for plaintiff-appellee.

John W. Hoefling, Williston Park, N.Y. (Maloney, Murphy, McLoone, Nelson, Dobise & McGrane, Williston Park, N.Y., of counsel), for defendants-appellants.

Before FEINBERG, Chief Judge, LUMBARD and NEWMAN, Circuit Judges.

LUMBARD, Circuit Judge.

The Village of Southampton, its mayor, building inspector, and other individual defendants including various members of the Board of Trustees, the Zoning Board of Appeals, and the Board of Architectural Review, appeal from an order, by Judge Sifton, Eastern District of New York, denying their motion for a stay or dismissal of proceedings under federal abstention doctrines. We dismiss for lack of appellate jurisdiction.

This action was brought on August 13, 1984, by RRI Realty Corporation, the owner of a 6.3 acre parcel of oceanfront property in the Village of Southampton. In its complaint, the corporation alleges that Southampton and named individuals have deprived it of the use and enjoyment of its property in violation of the Fifth and Fourteenth Amendments of the United States Constitution, as well as Article 1, Sec. 6 of the Constitution of the State of New York, and that they have denied the corporation its due process and equal protection rights under the Fourteenth Amendment. The action arises out of a dispute over the renovation of a 63-room, single-family residence, built on RRI's parcel approximately 60 years ago. RRI seeks damages and declaratory relief pursuant to 42 U.S.C. Sec. 1983 (1982), and 28 U.S.C. Secs. 1331 and 2201 (1982).

On October 31, 1984, the defendants moved for an order staying the federal court proceedings pending the disposition of two state court actions. The state petitions, commenced by RRI in June and July of 1984, seek orders directing Southampton's Zoning Board of Appeals to grant a variance and the Village's building inspector to issue a building permit for work on the property. By order dated December 5, 1984, Judge Sifton determined that abstention was not appropriate, as the constitutional issues raised by RRI would not be altered or mooted by the state court determinations, there are no material state statutes in need of state court construction, and no comprehensive state regulatory system is threatened by federal action. The defendants did not request the district court to certify its order for interlocutory review pursuant to 28 U.S.C. Sec. 1292(b) (1982).

Instead, the Village and individual defendants assert that their right to appeal the denial of their motion for abstention is established by the Supreme Court's ruling in Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). We disagree.

In Moses H. Cone Memorial Hosp., the District Court for the Middle District of North Carolina stayed a diversity action for an order to compel arbitration under Sec. 4 of the United States Arbitration Act of 1925, 9 U.S.C. Sec. 4, pending resolution of a concurrent state court suit. The Court of Appeals for the Fourth Circuit reversed the stay, 656 F.2d 933, reh'g denied, 664 F.2d 936 (1981), and the Supreme Court granted certiorari. 455 U.S. 937, 102 S.Ct. 1426, 71 L.Ed.2d 647 (1982). At issue, for our purposes, was whether the district court's order to stay proceedings was appealable pursuant to 28 U.S.C. Sec. 1291 (1982). ¹

Concluding that the stay order was a final decision and thus ripe for appellate review, the Supreme Court reasoned that stay of the federal suit, pending termination of a state action which would resolve the disputed question concerning the arbitrability of petitioner's claims, fell within the ambit of 28 U.S.C. Sec. 1291 because it ensured, under principles of res judicata, that there would be no further litigation in a federal forum. In this narrow circumstance, where a stay requires that "all or an essential part" of the issues in a federal suit be resolved in a state court, Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. at 11 n. 11, 103 S.Ct. at 934 n. 11, the stay, for all practical purposes, spells an end to the federal suit:

We hold only that a stay order is final when the sole purpose and effect of the stay are precisely to surrender jurisdiction of a federal suit to a state court.

Id.

The decision not to abstain, in contrast, is in no way a final decision, for the purpose of the federal litigation, and is consequently not appealable under 28 U.S.C. Sec. 1291. See Field, The Abstention Doctrine Today, 125 U.Pa.L.Rev. 590, 598-601 (1977)....