RAPOLI v. VILLAGE OF RED HOOK (2007)

In an action, inter alia, to recover damages for intentional infliction of emotional distress, and pursuant to 42 USC § 1983 for civil rights violations, the plaintiff appeals from an order of the Supreme Court, Dutchess County (Dolan, J.), dated March 8, 2006, which granted the defendants' motion, inter alia, pursuant to CPLR 3211(a)(5) and General Municipal Law § 50-i to dismiss the complaint as time barred and on the grounds of res judicata and collateral estoppel.

ORDERED that the order is affirmed, with costs.

On or about October 11, 2004, the plaintiff served a sworn and verified notice of claim on the defendants claiming injuries he allegedly sustained arising from his suspension from employment as a part-time police officer of the defendant Village of Red Hook.   In the notice of claim, the plaintiff asserted, inter alia, that he was suspended, without pay, beginning in June 2002.   On July 28, 2005, the plaintiff commenced the instant action, inter alia, to recover damages for intentional infliction of emotional distress, and pursuant to 42 USC § 1983 for alleged civil rights violations.

The Supreme Court properly dismissed the claims asserted in the complaint that sounded in tort as the plaintiff failed to timely serve a notice of claim pursuant to General Municipal Law § 50-e(1)(a) (see e.g. Compass v. County of Nassau, 37 A.D.3d 752, 830 N.Y.S.2d 583;  Matter of Marino v. New York City Off-Track Betting Corp., 12 A.D.3d 606, 608, 785 N.Y.S.2d 481;  Broadmeadow Lanes v. Catskill Regional Off-Track Betting Corp., 151 A.D.2d 631, 543 N.Y.S.2d 91;  Baumblatt v. Battalia, 134 A.D.2d 226, 228, 520 N.Y.S.2d 571) and those claims were also time barred by General Municipal Law § 50-i(1)(c).  Moreover, the prior dismissal of a separate proceeding related to this matter, commenced by the plaintiff pursuant to CPLR article 78 (see Matter of Rapoli v. Village of Red Hook, 29 A.D.3d 1007, 1008, 815 N.Y.S.2d 722), also mandated dismissal of the claims sounding in tort under the doctrine of res judicata (see Smith v. Russell Sage Coll., 54 N.Y.2d 185, 194, 445 N.Y.S.2d 68, 429 N.E.2d 746;  Matter of Ferranti v. New York City Prop. Clerk's Off., 6 A.D.3d 178, 179, 773 N.Y.S.2d 876;  Cold Spring Harbor Area Civic Assn. v. Board of Zoning Appeals of Town of Huntington, 305 A.D.2d 444, 445, 762 N.Y.S.2d 392;  Matter of Karmel v. Delfino, 293 A.D.2d 473, 740 N.Y.S.2d 373;  Matter of Lake Anne Realty Corp. v. Planning Bd., Town of Blooming Grove, 262 A.D.2d 413, 414, 691 N.Y.S.2d 173;  Matter of Koeppel v. Wachtler, 183 A.D.2d 829, 831, 583 N.Y.S.2d 977).

Although the claim asserted in the complaint pursuant to 42 USC § 1983 did not require service of a notice of claim (see Sangermano v. Board of Coop. Educ. Servs. of Nassau County, 290 A.D.2d 498, 499, 736 N.Y.S.2d 258;  Welch v. State of New York, 286 A.D.2d 496, 498, 729 N.Y.S.2d 527;  Lopez v. Shaughnessy, 260 A.D.2d 551, 688 N.Y.S.2d 614;  Matter of Rattner v. Planning Commn. of Vil. of Pleasantville, 156 A.D.2d 521, 548 N.Y.S.2d 943), such claim also was time barred by the three-year limitations period governing such claims (see Levine v. McCabe, 357 F.Supp.2d 608, 614;  Perez v. County of Nassau, 294 F.Supp.2d 386, 389).

The plaintiff's remaining contentions either need not be reached in light of our determination or are without merit.