| Lester v New York State Off. of Parks, Recreation, & HistoricPreserv. |
| 2011 NY Slip Op 06216 [87 AD3d 561] |
| August 9, 2011 |
| Appellate Division, Second Department |
| Roy J. Lester, Appellant, v New York State Office ofParks, Recreation, and Historic Preservation, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, New York, N.Y. (Richard P. Dearing and RaffiMelkonian of counsel), for respondent.
In an action, inter alia, to recover damages for discrimination in employment on the basis ofage and sex, the plaintiff appeals, as limited by his brief, from so much of an order of theSupreme Court, Nassau County (McCarty III, J.), entered January 20, 2010, as granted thatbranch of the defendant's motion which was pursuant to CPLR 3211 (a) to dismiss the first andthird causes of action.
Ordered that the order is reversed insofar as appealed from, on the law and the facts, withcosts, and that branch of the defendant's motion which was to dismiss the first and third causes ofaction is denied.
The plaintiff is an attorney who had also worked for many years as a seasonal lifeguard atJones Beach. In 2007, at age 57, he was not permitted to requalify as a lifeguard because he waswearing a "jammer" or bicycle-short swimsuit instead of the briefer and less modeststate-required swimsuit. In June 2007 the plaintiff filed a complaint with the New York StateDivision of Human Rights (hereinafter the Division) charging the New York State Office ofParks, Recreation, and Historic Preservation (hereinafter the defendant) with illegal age and sexdiscrimination. In December 2007 the Division dismissed the complaint upon finding noprobable cause to believe that the defendant engaged in an unlawful discriminatory practice. In ajudgment entered March 21, 2008, the Supreme Court dismissed, as time-barred, the plaintiff'sCPLR article 78 proceeding to review the Division's determination. In a decision and order datedMarch 3, 3009, this Court affirmed the judgment of the Supreme Court (see Matter of Lester v New York State Off.of Parks, Recreation & Historic Preserv., 60 AD3d 680 [2009]).
On June 8, 2008, the 58-year-old plaintiff attempted to take the test for new lifeguards whilewearing the same type of "jammer" swimsuit, and, as a result, he was not allowed to participate.He filed another complaint with the Division based upon this incident. On April 21, 2009, theDivision granted his request to dismiss the administrative complaint on the ground of [*2]administrative convenience, and annul his election of remedies sothat he could pursue his judicial remedies.
In June 2009 the plaintiff commenced this action against the defendant, alleging age and sexdiscrimination in prohibiting him from taking the test for new lifeguards in 2008. Specifically, healleged that he was the oldest applicant to appear for the test, and was rejected because he wasnot wearing the type of swimsuit which the defendant demanded. In an order entered January 20,2010, the Supreme Court granted the defendant's motion to dismiss the complaint. In dismissingthe first and third causes of action, the Supreme Court reasoned that the plaintiff was precludedby the doctrine of collateral estoppel from arguing that the defendant's refusal to allow him towear the swimsuit of his choice constituted age or sex discrimination. The Supreme Courtdetermined that this issue had been litigated by the parties and rejected by the Division in 2007.The plaintiff now appeals from so much of the order as granted that branch of the defendant'smotion which was to dismiss the first and third causes of action. We reverse.
"The doctrine of collateral estoppel . . . precludes a party from relitigating in asubsequent action or proceeding an issue clearly raised in a prior action or proceeding anddecided against that party or those in privity, whether or not the tribunals or causes of action arethe same" (Ryan v New York Tel. Co., 62 NY2d 494, 500 [1984]; see Mose v Sangiovanni, 84 AD3d1041 [2011]). Collateral estoppel will be given only to matters actually litigated anddetermined in a prior action or proceeding (see Kaufman v Eli Lilly & Co., 65 NY2d 449,456 [1985]; Simpson v Alter, 78AD3d 813, 814 [2010]). It must be shown that the identical issue was decided in the prioraction or proceeding, is decisive in the present action, and that the party to be precluded fromrelitigating the issue had a full and fair opportunity to contest it (see Nachum v Ezagui, 83 AD3d1017, 1018 [2011]).
Contrary to the Supreme Court's determination, the issues regarding the 2008 test for newlifeguards were not, and could not have been, actually litigated by the parties in the 2007proceeding before the Division in which it found that there was no probable cause to believe thedefendant engaged in an unlawful discriminatory practice in not requalifying the plaintiff as alifeguard. Although the plaintiff commenced a CPLR article 78 proceeding in the Supreme Courtto review the Division's 2007 determination, the issues were not adequately litigated there sincethe Supreme Court, without addressing the merits, dismissed the proceeding as time-barred, andthis Court thereafter affirmed the dismissal on the same ground. Thus, the plaintiff cannot becollaterally estopped from arguing in this action that the defendant discriminated against him in2008 by barring him from taking the test for new lifeguards (see DiLauria v Town of Harrison, 32 AD3d 490 [2006]; Boardof Educ. of Manhasset Union Free School Dist. v New York State Human Rights AppealBd., 106 AD2d 364 [1984]; cf. Astoria Fed. Sav. & Loan Assn. v Solimino, 501 US104 [1991]).
The defendant's remaining contentions either are without merit or have been renderedacademic by our determination. Accordingly, the Supreme Court should have denied that branchof the defendant's motion which was to dismiss the first and third causes of action. Mastro, J.P.,Dillon, Balkin and Miller, JJ., concur.