DiLAURIA v. TOWN OF HARRISON

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Supreme Court, Appellate Division, Second Department, New York.

Steven DiLAURIA, appellant, v. TOWN OF HARRISON, et al., respondents.

Decided: August 22, 2006

GABRIEL M. KRAUSMAN, J.P., WILLIAM F. MASTRO, REINALDO E. RIVERA, and ROBERT A. SPOLZINO, JJ. Scott A. Korenbaum, New York, N.Y., for appellant. Friedman, Harfenist, Langer & Kraut, Lake Success, N.Y. (Steven Jay Harfenist of counsel), for respondents.

In an action, inter alia, to recover damages for discrimination based upon disability pursuant to the New York State Human Rights Law (Executive Law article 15), the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (Lefkowitz, J.), dated May 24, 2004, as granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(5) to dismiss his second cause of action on the ground of collateral estoppel.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, that branch of the defendants' motion which was pursuant to CPLR 3211(a)(5) to dismiss the plaintiff's second cause of action on the ground of collateral estoppel is denied, and the second cause of action is reinstated.

The plaintiff commenced this action against, among others, the Town of Harrison and the Village of Harrison, alleging in his second cause of action that the termination of his employment as a police officer constituted discrimination in violation of the New York State Human Rights Law (Executive Law article 15;  see Executive Law § 296[1] ).   The Supreme Court granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(5) to dismiss the second cause of action on the ground of collateral estoppel.   We reverse and reinstate that cause of action.

 “[C]ollateral estoppel effect will only be given to matters ‘actually litigated and determined’ in a prior action” or proceeding (Kaufman v. Lilly & Co., 65 N.Y.2d 449, 456, 492 N.Y.S.2d 584, 482 N.E.2d 63;  see Chambers v. City of New York, 309 A.D.2d 81, 85, 764 N.Y.S.2d 708;  Morelli v. Giglio, 143 A.D.2d 986, 533 N.Y.S.2d 577).   Because the issues of discrimination raised by the plaintiff in this action, as well as the issues concerning the damages recoverable as a consequence, were not actually litigated in the plaintiff's prior CPLR article 78 proceeding, he cannot be collaterally estopped from litigating them here (see Board of Educ. of Manhasset Union Free School Dist. v. New York State Human Rights Appeal Bd., 106 A.D.2d 364, 482 N.Y.S.2d 495;  see also Grovesteen v. New York State Pub. Empls. Fedn. AFL-CIO, 265 A.D.2d 784, 697 N.Y.S.2d 392;  Crespo v. 160 W. End Ave. Owners Corp., 253 A.D.2d 28, 687 N.Y.S.2d 79;  cf. Barrett v. City of New York, 166 A.D.2d 241, 564 N.Y.S.2d 102).

 The alternative ground urged by the defendants for affirmance is that the plaintiff's Human Rights Law cause of action is barred by res judicata.   This claim is not properly before us, as it is raised for the first time on appeal (see Gammal v. La Casita Milta, 5 A.D.3d 630, 774 N.Y.S.2d 771;  Sandoval v. Juodzevich, 293 A.D.2d 595, 595-596, 740 N.Y.S.2d 217;  Mourounas v. Shahin, 291 A.D.2d 537, 737 N.Y.S.2d 647;  Weber v. Jacobs, 289 A.D.2d 226, 733 N.Y.S.2d 910).   In any event, the claim is without merit.   The plaintiff's Human Rights Law cause of action does not seek the restoration of any economic benefits derivable from his status as a police officer, which is the only monetary relief that was available in his prior CPLR article 78 proceeding (see Civil Service Law § 77;  Van Buskirk v. Bleiler, 46 A.D.2d 707, 707-708, 360 N.Y.S.2d 88;  see also Mauro v. Freeport, 143 A.D.2d 75, 76, 531 N.Y.S.2d 325).   Rather, his prayer for relief seeks unspecified monetary damages for economic loss and emotional distress (see Executive Law § 297[4][c], [9];  Batavia Lodge No. 196, Loyal Order of Moose v. New York State Div. of Human Rights, 35 N.Y.2d 143, 145, 359 N.Y.S.2d 25, 316 N.E.2d 318;  Comm. for Human Rights v. Speer, 29 N.Y.2d 555, 557, 324 N.Y.S.2d 297, 272 N.E.2d 884;  Catalina Beach Club v. State Div. of Human Rights, 95 A.D.2d 766, 463 N.Y.S.2d 244) and, as a consequence, there is no identity between the claim asserted in the prior CPLR article 78 proceeding and the instant action (see Parker v. Blauvelt Volunteer Fire Co., 93 N.Y.2d 343, 347-348, 690 N.Y.S.2d 478, 712 N.E.2d 647).   Hence, the plaintiff's Human Rights Law cause of action is not barred by res judicata (id.;   cf. Matter of Town of Huntington v. New York State Div. of Human Rights, 82 N.Y.2d 783, 786, 604 N.Y.S.2d 541, 624 N.E.2d 678).

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