IN RE: Jacqueline Zimbardi (2026)

Argued—March 9, 2026

DECISION & ORDER

In a proceeding pursuant to CPLR article 78, inter alia, to annul a resolution of the Incorporated Village of Manorhaven dated May 24, 2023, rescinding the appointment of the petitioner as clerk-treasurer for the Incorporated Village of Manorhaven, the Incorporated Village of Manorhaven appeals from an order and judgment (one paper) of the Supreme Court, Nassau County (Sarika Kapoor, J.), dated October 11, 2024.  The order and judgment, insofar as appealed from, granted that branch of the petition which was for an award of back pay, entitlements, and benefits from May 24, 2023, to June 30, 2024, and denied that branch of the motion of the Incorporated Village of Manorhaven which was pursuant to CPLR 3211(a) and 7804(f) to dismiss that branch of the petition which was for an award of back pay, entitlements, and benefits from May 24, 2023, to June 30, 2024.

ORDERED that the order and judgment is affirmed insofar as appealed from, with costs.

By resolution dated April 5, 2023, the petitioner was appointed as the clerk-treasurer for the Incorporated Village of Manorhaven and her term was set to expire on June 30, 2024.  By resolution dated May 24, 2023 (hereinafter the May resolution), the petitioner's appointment was rescinded.

The petitioner commenced this proceeding pursuant to CPLR article 78 against the Village to annul the May resolution, to be reinstated as clerk-treasurer, and for an award of back pay, entitlements, and benefits, alleging that her removal was not properly effectuated in accordance with Public Officers Law § 36.  The Village moved pursuant to CPLR 3211(a) and 7804(f) to dismiss the petition, arguing, inter alia, that the proceeding was barred by the doctrines of res judicata and collateral estoppel.

In an order and judgment dated October 11, 2024, the Supreme Court, among other things, granted that branch of the petition which was for an award of back pay, entitlements, and benefits from May 24, 2023, to June 30, 2024, and denied that branch of the Village's motion which was pursuant to CPLR 3211(a) and 7804(f) to dismiss that branch of the petition.  The Village appeals.

“Pursuant to CPLR 3211(a)(5), a party may move to dismiss a [petition] based on the doctrine of res judicata or collateral estoppel” (Joseph v. Bank of N.Y. Mellon, 219 AD3d 596, 597).  “Under the doctrine of res judicata, a disposition on the merits bars litigation between the same parties or those in privity with them of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior proceeding” (Babad v. Oratz, 242 AD3d 807, 808 [internal quotation marks omitted];  see Paramount Pictures Corp. v. Allianz Risk Transfer AG, 31 NY3d 64, 72–73).  The doctrine of collateral estoppel “precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same” (Ryan v. New York Tel. Co., 62 N.Y.2d 494, 500;  see Matter of A. Ottavino Prop. Corp. v Incorporated Vil. of Westbury, 203 AD3d 920, 921).  “The party seeking the benefit of collateral estoppel bears the burden of proving that the identical issue was necessarily decided in the prior action and is decisive of the present action, and the party against whom preclusion is sought bears the burden of demonstrating the absence of a full and fair opportunity to contest the prior determination” (Babad v. Oratz, 242 AD3d at 808 [internal quotation marks omitted];  see Matter of Dunn, 24 NY3d 699, 704).

“Generally, to establish privity the connection between the parties must be such that the interests of the nonparty can be said to have been represented in the prior proceeding” (Green v. Santa Fe Indus., 70 N.Y.2d 244, 253;  see Bravo v. Atlas Capital Group, LLC, 196 AD3d 627, 628).  Privity “does not have a technical and well-defined meaning” but rather it “is an amorphous concept not easy of application” (Matter of Juan C. v. Cortines, 89 N.Y.2d 659, 667 [internal quotation marks omitted] ).  Privity includes “those who are successors to a property interest, those who control an action although not formal parties to it, those whose interests are represented by a party to the action, and possibly coparties to a prior action” (Watts v. Swiss Bank Corp., 27 N.Y.2d 270, 277).  When the issue of privity is raised, “courts must carefully analyze whether the party sought to be bound and the party against whom the litigated issue was decided have a relationship that would justify preclusion, and whether preclusion, with its severe consequences, would be fair under the particular circumstances” (Buechel v. Bain, 97 N.Y.2d 295, 304–305).

Contrary to the Village's contention, it failed to demonstrate that the petitioner was in privity with any of the parties to a separate proceeding commenced by the clerk-treasurer who preceded the petitioner against, among others, the Village, and that the petitioner was thereby bound by a judgment entered in that proceeding.  Accordingly, the Village failed to establish that the doctrines of res judicata or collateral estoppel barred the instant proceeding (see Babad v. Oratz, 242 AD3d at 808;  Nationstar Mtge., LLC v. Davis, 240 AD3d 790, 793), and the Supreme Court properly granted that branch of the petition which was for an award of back pay, entitlements, and benefits from May 24, 2023, to June 30, 2024, and denied that branch of the Village's motion which was pursuant to CPLR 3211(a) and 7804(f) to dismiss that branch of the petition.

The Village's remaining contentions are either improperly raised for the first time on appeal or without merit.

DILLON, J.P., FORD, VOUTSINAS and QUIRK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court