IN RE: Application of Tonya BETHEA (2000)

Judgment, Supreme Court, New York County (Walter Tolub, J.), entered February 7, 2000, which denied the petition and dismissed the proceeding brought pursuant to CPLR article 78, seeking, inter alia, a determination that respondents have failed to comply with mandated foster care family service plan procedures related to permanency planning, unanimously affirmed, without costs.

Supreme Court properly determined that the instant proceeding was barred by the doctrine of res judicata since the issues petitioners would litigate, involving systemic and procedural inadequacies in the New York City foster care system, have been previously and conclusively litigated in Marisol A. v. Giuliani, 185 F.R.D. 152, affd. sub nom.  Joel A. v. Giuliani, 2d Cir., 218 F.3d 132, a Federal civil rights action, by parties in privity with petitioners.   The final judgment in Marisol, entered on or about March 31, 1999, predicated on settlement agreements approved by the District Court, expressly dismissed, “with prejudice”, all class claims of the plaintiffs therein, children in foster care in New York City, that were asserted or could have been brought.   This dismissal necessarily included claims with respect to permanency planning for children in foster care substantially identical to those raised by petitioners in the present litigation.   Petitioners, as parents of children in foster care who were included in the Marisol plaintiff class, are in privity with the Marisol plaintiffs by reason of their close familial relation to members of the Marisol plaintiff class, the interest they share with the Marisol plaintiffs in remediating the alleged systemic defects in permanency planning in the New York City foster care system, and the manifestly full and fair litigation in Marisol of the issues petitioners now seek to raise (see, Slocum ex rel. Nathan A. v. Joseph B., 183 A.D.2d 102, 588 N.Y.S.2d 930).   Petitioners are accordingly bound by the judgment entered in Marisol, which stands as a bar to the instant litigation.

MEMORANDUM DECISION.