| Bayer v City of New York |
| 2014 NY Slip Op 02005 [115 AD3d 897] |
| March 26, 2014 |
| Appellate Division, Second Department |
| Hank Bayer, Appellant, v City of New York et al.,Respondents. |
—[*1] Zachary W. Carter, Corporation Counsel, New York, N.Y. (Edward F.X. Hart andMarita Ross of counsel), for respondents.
In an action, inter alia, to recover damages for discrimination in employment on thebasis of age in violation of Executive Law § 296, the plaintiff appeals from anorder of the Supreme Court, Kings County (Landicino, J.), dated October 25, 2012,which, in effect, granted the defendants' motion pursuant to CPLR 3211 (a) to dismissthe complaint on the ground that the action was barred by the doctrine of res judicata.
Ordered that the order is affirmed, with costs.
From 1982 until his retirement in 2005, the plaintiff was employed by the New YorkCity Department of Education (hereinafter the Department) as a plumber. In February2004, charges were brought against the plaintiff pursuant to Civil Service Law §75, alleging various types of work-related misconduct, and he was suspended for 30 dayswithout pay. After a hearing, an administrative law judge upheld several of the chargesand recommended that the plaintiff be suspended for a period of 30 days, to be satisfiedby the prehearing suspension he had already served. While the charges were pending, theplaintiff served a notice of claim upon the City. In September 2004, he commenced anaction in the Supreme Court (hereinafter the 2004 action) against the City, theDepartment, and his supervisor, Nunzio Piro, alleging, inter alia, defamation andintentional infliction of emotional distress. In an order dated February 21, 2008, theSupreme Court granted the defendants' motion for summary judgment dismissing thecomplaint. In an order dated March 10, 2009, this Court affirmed the order of theSupreme Court (see Bayer vCity of New York, 60 AD3d 713 [2009]).
In October 2005, while the 2004 action was pending, the plaintiff served anothernotice of claim upon the City. In June 2006, he commenced the instant action in theSupreme Court against the City, the Department, Piro, and two other employees of theDepartment, Richard Frisby and Michael Fiore, alleging age discrimination and thecreation of a hostile work environment in violation of Executive Law § 296. In anorder dated October 25, 2012, the Supreme Court, in effect, granted the defendants'motion to dismiss the complaint in the instant action on the ground that the action wasbarred by the doctrine of res judicata (see CPLR 3211 [a] [5]).
"Under the doctrine of res judicata, a disposition on the merits bars litigationbetween [*2]the same parties, or those in privity withthem, of a cause of action arising out of the same transaction or series of transactions as acause of action that either was raised or could have been raised in the prior proceeding"(Abraham v Hermitage Ins.Co., 47 AD3d 855, 855 [2008]). Generally, to establish privity the interests ofthe nonparty must have been represented by a party in the prior proceeding (seeGreen v Santa Fe Indus., 70 NY2d 244, 253 [1987]). The Court of Appeals hasobserved that privity is an "amorphous concept," not easily applied (Buechel vBain, 97 NY2d 295, 304 [2001], cert denied 535 US 1096 [2002] [internalquotation marks omitted]), but persons in privity include those whose interests arerepresented by a party to the previous action and those "[whose] own rights orobligations in the subsequent proceeding are conditioned in one way or another on, orderivative of, the rights of the party to the prior litigation" (D'Arata v New YorkCent. Mut. Fire Ins. Co., 76 NY2d 659, 664 [1990]).
" 'The fact that causes of action may be stated separately, invoke different legaltheories, or seek different relief will not permit relitigation of claims' " (Pondview Corp. v Blatt, 95AD3d 980, 980 [2012], quoting Matter of ADC Contr. & Constr., Inc. v Town of Southampton,50 AD3d 1025, 1026 [2008]). Thus, the doctrine of res judicata "operates topreclude the renewal of issues actually litigated and resolved in a prior proceeding aswell as claims for different relief which arise out of the same factual grouping ortransaction and which should have or could have been resolved in the prior proceeding"(Koether v Generalow, 213 AD2d 379, 380 [1995] [internal quotation marksomitted]; see Luscher vArrua, 21 AD3d 1005, 1006-1007 [2005]). In determining whether a factualgrouping constitutes a transaction for res judicata purposes, a court must apply apragmatic test and analyze how the facts are related as to time, space, origin ormotivation, whether they form a convenient trial unit and whether treating them as a unitconforms to the parties' expectations or business understanding (see Xiao Yang Chen v Fischer,6 NY3d 94, 100-101 [2005]; Smith v Russell Sage Coll., 54 NY2d 185,192-193 [1981]; DouglasElliman, LLC v Bergere, 98 AD3d 642, 643 [2012]). For the doctrine of resjudicata to be applied, there must have been, in the prior proceeding, a final judgment onthe merits (see Brown vLutheran Med. Ctr., 107 AD3d 837, 838 [2013]). "An order granting a summaryjudgment motion is on the merits and has preclusive effect" (Methal v City of New York,50 AD3d 654, 656 [2008]).
The causes of action asserted by the plaintiff in the instant action arose out of thesame transaction or series of transactions as those raised in the 2004 action. Moreover, asthe plaintiff commenced this action in 2006, during the pendency of the 2004 action, allof the causes of action asserted here could have been raised in the 2004 action. Theallegations here, while amplified somewhat by the assertions concerning the plaintiff'sretirement in 2005 and the reasons therefor, arose from the same events that underpinnedthe 2004 action. Furthermore, although Frisby and Fiore were not named in the 2004action, since they are employees of the Department whose conduct formed the basis ofthe plaintiff's allegations in the 2004 action, they are entitled to rely upon the beneficialdisposition of the 2004 action against the City and the Department (see Perry vCosta, 97 AD2d 655, 655-656 [1983]). Accordingly, notwithstanding the fact thatthe causes of action and legal theories alleged here are different from those alleged in the2004 action, and some of the defendants are different, the Supreme Court properlygranted the defendants' motion to dismiss the complaint on the ground that the instantaction was barred by the doctrine of res judicata.
In light of our determination, we need not reach the parties' remaining contentions.Dillon, J.P., Hall, Austin and Sgroi, JJ., concur.