CONCOURSE REHABILITATION NURSING CENTER INC v. NOVELLO (2003)

Order, Supreme Court, Bronx County (Paul Victor, J.), entered on or about June 12, 2002, which, to the extent appealed from as limited by the brief, granted the motion of defendant Antonia Novello, as Commissioner of the Department of Health (the State), to dismiss plaintiff's federal claims, and granted the motion of defendant Foundation for Quality Medical Care, Inc. (Foundation) to dismiss the complaint against it in its entirety, unanimously affirmed, without costs.

 The claims against the Foundation were properly dismissed, since plaintiffs failed to allege with any specificity facts that would support a claim for conspiracy under 42 USC § 1983 and § 1985(3) (see Zemsky v. City of New York, 821 F.2d 148, cert. denied 484 U.S. 965, 108 S.Ct. 456, 98 L.Ed.2d 396).   The circumstance that the Foundation was the State's agent, and in that capacity acted pursuant to lawful regulations promulgated by the State, does not allege a conspiracy under 42 USC § 1983 and § 1985(3).   Furthermore, because the Foundation is not answerable for the State's actions, application of the “relation back” doctrine under CPLR 205, for the purpose of overcoming the statute of limitations, is precluded (see Kitson v. Atl. Refining & Mktg. Corp., 227 A.D.2d 971, 643 N.Y.S.2d 862).

 The federal claims asserted against the State could have been raised in the prior federal litigation and are thus barred on the ground of res judicata (see O'Brien v. City of Syracuse, 54 N.Y.2d 353, 357-358, 445 N.Y.S.2d 687, 429 N.E.2d 1158).   In addition, inasmuch as the distinction plaintiffs would make between their present “unjust taking” claim and the previously litigated Boren Amendment claims is untenable, the subject claims were also properly dismissed on the ground of collateral estoppel (see Pinnacle Consultants, Ltd. v. Leucadia Natl. Corp., 94 N.Y.2d 426, 431-432, 706 N.Y.S.2d 46, 727 N.E.2d 543).