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December 8, 1970

Harold ROBBINS, Plaintiff,
POLICE PENSION FUND, Article 11, Inc., the City of New York and Police Commissioner Michael P. Murphy, Defendants

Cooper, District Judge.

The opinion of the court was delivered by: COOPER

COOPER, District Judge.

Plaintiff moves and defendants crossmove for summary judgment pursuant to Rule 56, F.R. Civ. P. Finding no triable issues of fact, we deny plaintiff's motion and grant defendants' motion.

 Plaintiff was a Lieutenant in the New York City Police Department with more than twenty (20) years of service credit when he was dismissed on March 5, 1963 from the force by the Police Commissioner. *fn1"

 On March 3, 1962, a suspect was arrested for a felonious assault against his wife, forgery, bigamy, and illegal entry into the United States. Plaintiff was then assigned as desk officer in command of the 108th Precinct stationhouse where the suspect was being held. The prisoner escaped custody that evening and plaintiff was held accountable. Following a departmental hearing, the trial commissioner of the Police Department (so designated by its Police Commissioner) found plaintiff before us guilty on thirteen (13) charges and specifications, and recommended that he be suspended for thirty (30) days and placed on probation for one (1) year. The Police Commissioner did not follow the recommendation and dismissed plaintiff from the force March 5, 1963. *fn2"

 Plaintiff commenced an Article 78 proceeding June 20, 1963, in the New York State Supreme Court, New York County, to review the discretion underlying the administrative decision which resulted in his dismissal. The matter in due course was transferred to the Appellate Division, First Department, on February 20, 1963. The Appellate Division unanimously affirmed the determination of the Police Commissioner. 24 A.D. 2d 933, 264 N.Y.S. 2d 211 (1st Dept. 1965), motion for leave to appeal denied, 17 N.Y. 2d 423, 270 N.Y.S. 2d 1026, 217 N.E. 2d 41 (N.Y.C.A. 1966).

 Plaintiff now contends, in the main, that the resulting loss of pension rights accompanying his dismissal is a denial of due process of law in violation of the United States Constitution, Amendment XIV; an impairment or diminishment of his contractual rights in violation of New York State Constitution, Article 5 § 7; and cruel and unusual punishment under United States Constitution, Amendment VIII. Jurisdiction is based upon 28 U.S.C. § 1331. *fn3"

 As to res judicata

 At the outset, defendants claim that the judgment of the Appellate Division is res judicata in this proceeding. The general rule is that a state law or federal constitutional question is res judicata in a subsequent federal court action where the parties and subject matter are the same. Resolute Insurance Company v. State of North Carolina, 276 F. Supp. 660 (E.D.N.C. 1967); Olson v. Board of Ed. of U. Free Sch. Dist. No. 12, Malverne, N.Y., 250 F. Supp. 1000, 1004, n. 8 (E.D.N.Y. 1966).

 Strict identity of parties is not required. Plaintiff has had his day in court and if it were otherwise permissible defendants could defensively use the prior judgment which was adverse to plaintiff. B.R. DeWitt, Inc. v. Hall, 19 N.Y. 2d 141, 278 N.Y.S. 2d 596, 225 N.E. 2d 195 (N.Y.C.A. 1967).

 In addition, plaintiff's failure to raise constitutional issues in the state court Article 78 proceeding does not by itself preserve the right to enter a federal court at a later date upon the same facts, alleging the same wrong and seeking the same recovery, simply because a new theory of relief based upon the Constitution is presented. Tomiyasu v. Golden, 358 F.2d 651 (9th Cir. 1966).

 In furtherance of the res judicata rationale which favors efficient use of judicial resources, a judgment may be res judicata for matters actually presented as well as those which could have been presented. Grubb v. Public Utilities Commission of Ohio, 281 U.S. 470, 50 S. Ct. 374, 74 L. Ed. 972 (1930); Pray v. Hegeman, 98 N.Y. 351 (C.A.N.Y. 1885).

 The issue therefore is whether plaintiff could have raised his constitutional objections in the Article 78 proceeding. Under New York law, a party cannot in a single proceeding rely upon a statute or retain benefits thereunder and also attack its constitutionality. The proper procedure would be to raise the constitutional issue in a separate declaratory judgment action. Diocese of Rochester v. Planning Board of Town of Brighton, 1 N.Y. 2d 508, 154 N.Y.S. 2d 849, 136 N.E. 2d 827 (C.A.N.Y. 1956); 8 Weinstein-Korn-Miller, New York Civil Practice, para. 7801.024, n. 10. *fn4"

 With over twenty (20) years of service, plaintiff could have elected retirement and received his pension benefits *fn5" if he seasonably applied for retirement before ...

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