VILLAGE OF ANGELICA v. VOITH

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Supreme Court, Appellate Division, Fourth Department, New York.

VILLAGE OF ANGELICA, Plaintiff-Respondent, v. Stephen VOITH and Linda Voith, Defendants-Appellants.

Decided: April 28, 2006

PRESENT:  SCUDDER, J.P., KEHOE, SMITH, GREEN, AND PINE, JJ. Ross Scott Law Firm, Andover (W. Ross Scott of Counsel), for Defendants-Appellants. Raymond W. Bulson, Portville, for Plaintiff-Respondent. Law Offices of Robert C. Moest, Santa Monica, California (Robert C. Moest of Counsel), for Hindu American Foundation, World Hindu Council, Arsha Vidya Gurukulam (Institute for Study of Sanskrit and Vedanta), Bochasanwasi Shree Akshar Purushottam Swaminarayan Sanstha, Inc., The International Center for Cultural Studies, USA, Inc., Jaina, The Federation of Jain Associations in North America, and Vraj (Pushti Margiya Vaishnav Samaj of North America), Amici Curiae.

 Plaintiff, Village of Angelica (Village), commenced this action alleging that defendants had violated a Village ordinance by harboring animals on their 2 1/212-acre residential parcel within the Village and seeking the issuance of a permanent injunction requiring defendants to remove those animals from their property.   Contrary to defendants' contention, Supreme Court properly precluded defendants from litigating their defenses under the Free Exercise Clause of the First Amendment to the U.S. Constitution and the Religious Land Use and Institutionalized Persons Act of 2000 (42 USC § 2000cc et seq.).   In determining that defendants were precluded from litigating those religious freedom defenses, the court properly accorded collateral estoppel effect to the written decision of County Court on the appeal by defendant Stephen Voith from a judgment of Village Court determining that Stephen had violated the ordinance (see De Cicco v. Madison County, 300 A.D.2d 706, 708, 750 N.Y.S.2d 371;  Larsen v. Schultz, 280 A.D.2d 839, 840, 720 N.Y.S.2d 625;  Killmer v. Village of Whitehall, 81 A.D.2d 972, 972-973, 439 N.Y.S.2d 757, lv. denied 54 N.Y.2d 608, 443 N.Y.S.2d 1030, 427 N.E.2d 1191).   Those same religious freedom defenses were rejected by County Court on the prior appeal, and Supreme Court properly determined that collateral estoppel applies with respect to defendant Linda Voith as well inasmuch as she is in privity with Stephen (see Buechel v. Bain, 97 N.Y.2d 295, 304-306, 740 N.Y.S.2d 252, 766 N.E.2d 914, cert. denied 535 U.S. 1096, 122 S.Ct. 2293, 152 L.Ed.2d 1051;  see generally Green v. Santa Fe Indus., 70 N.Y.2d 244, 253, 519 N.Y.S.2d 793, 514 N.E.2d 105).   Finally, the court properly concluded that Stephen had a full and fair opportunity to litigate those defenses in the prior proceeding (see De Cicco, 300 A.D.2d at 708, 750 N.Y.S.2d 371;  Larsen, 280 A.D.2d at 839-840, 720 N.Y.S.2d 625;  Killmer, 81 A.D.2d 972, 439 N.Y.S.2d 757;  see generally Gilberg v. Barbieri, 53 N.Y.2d 285, 291, 441 N.Y.S.2d 49, 423 N.E.2d 807).

Defendants failed to preserve for our review their contention that the court erred in ending the trial in the midst of defendants' case-in-chief and in immediately proceeding to issue its decision (see generally Monroe v. Lozner, 267 A.D.2d 966, 701 N.Y.S.2d 679).   We note in any event that defendants fail in their brief on appeal to identify any pertinent evidence that might have been adduced had their attorney sought to elicit further testimony from defendants or their witnesses.

 With respect to the merits, we conclude that the court properly determined that defendants had been in continual violation of the Village ordinance by harboring cows, a goat, and other animals of that sort on their property and properly enjoined them from further violations of the ordinance (see generally Village Law §§ 7-714, 20-2006[1][c];  Incorporated Vil. of Freeport v. Jefferson Indoor Marina, 162 A.D.2d 434, 436, 556 N.Y.S.2d 150;  Village of Pelham Manor v. Crea, 112 A.D.2d 415, 492 N.Y.S.2d 74).   Contrary to the contention of defendants, neither their leasing of the 12-acre noncontiguous parcel nor their regard of their animals as their companions or pets brings them into compliance with the ordinance.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: