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PERROTTA v. IRIZARRY

May 3, 1977.

Benjamin PERROTTA, Plaintiff,
v.
Ivan IRIZARRY, Finance Administrator, et al., Defendants.



The opinion of the court was delivered by: WARD

ROBERT J. WARD, District Judge.

Defendant Philip Click ("Click") moves for summary judgment pursuant to Rule 56, Fed.R.Civ.P. Plaintiff Benjamin Perrotta ("Perrotta") cross-moves for summary judgment against defendant Click and for a declaratory judgment against defendants Ivan Irizarry ("Irizarry"), Harry Tishelman ("Tishelman"), and Morton Bock ("Bock") for failure to interpose an answer. *fn1" The record before the Court indicates that "there is no genuine issue of any material fact," Rule 56(c), Fed.R.Civ.P., and for the reasons hereinafter stated, summary judgment is granted in favor of defendant Click. Plaintiff's cross-motions are denied.

 Plaintiff, a former employee of the Finance Administration of the City of New York, instituted this pro se action under 42 U.S.C. § 1985(3) and its jurisdictional counterpart 28 U.S.C. § 1343, 18 U.S.C. §§ 241, 242 and the fourth, fifth, sixth, eighth and fourteenth amendments of the United States Constitution, alleging that his termination from employment constituted a conspiracy to violate his constitutional and civil rights. Perrotta was employed as an assistant assessor of real estate from 1963 until his suspension in September of 1975. Pursuant to N.Y.Civ.Serv.L.§ 75 (McKinney 1973), Irizarry, the City's Finance Administrator, served upon plaintiff notice of certain charges preferred against him. *fn2" The charges stemmed, in part, from plaintiff's alleged violation of Opinion No. 53 of the Board of Ethics of the City of New York, which held that the ownership of real estate for profit in the City of New York by an assessor was in conflict with his official duties and in violation of the Code of Ethics of the City of New York. After a formal disciplinary proceeding before Hearing Officer Bock, plaintiff was found guilty of all but one of the charges and on May 4, 1976, was dismissed from his employment.

 During the pendency of the disciplinary hearing, Perrotta commenced an Article 78 proceeding in state court ("Article 78 # 1") against Irizarry, challenging his suspension on constitutional grounds. His petition was dismissed "without prejudice to petitioner's right to bring a new proceeding pursuant to Article 78 of the CPLR" and without an adjudication on the merits. Thereafter, plaintiff instituted this action in federal court alleging that defendants conspired to violate his constitutional rights, and seeking punitive damages and criminal penalties. Perrotta's claims are as follows:

 1. Defendants Irizarry, Tishelman, Click and Bock conspired to deny plaintiff his position as an employee of the Finance Administration by means of selective prosecution;

 2.Defendant Irizarry maliciously caused the issuance of a press release detailing the charges against plaintiff prior to a determination on the merits, causing plaintiff irreparable mental anguish and damage to his name and reputation;

 3.Defendants Irizarry, Tishelman, Click and Bock conspired to deny plaintiff procedural due process at the disciplinary hearing;

 4. Defendants Irizarry, Tishelman, Click and Bock conspired to deny plaintiff the right to be informed of the nature of the accusation against him by failing to serve plaintiff with a statement of the charges upon which his dismissal was based;

 5. Defendants Irizarry, Tishelman and Bock submitted perjurious affidavits relating to service upon them with the intent to violate plaintiff's constitutional rights.

 Prior to decision by this Court on plaintiff's federal claims, Perrotta filed a second Article 78 proceeding ("Article 78 # 2") in state court against Irizarry and the Finance Administration of the City of New York, in which he claimed that: the charges against him were spurious; the charges were based on hearsay evidence; he was denied due process at the hearing; Irizarry abused his discretion as to the measure or mode of punishment; and the application of Ethical Opinion 53 was arbitrary and selective. Perrotta's application to the state court to review and set aside his dismissal from employment was denied in all respects. Perrotta v. Finance Administration of the City of New York, Ivan Irizarry, Finance Administrator, of the City of New York, Index No. 1171/76 (Sup.Ct.N.Y.Co. Feb. 28, 1977).

 Defendants claim that plaintiff is barred by res judicata or collateral estoppel from relitigating in the federal forum those claims which he had previously advanced in the Article 78 proceedings. "The law is that once an issue has been litigated in the State courts, it may not be relitigated in the Federal courts." Montagna v. O'Hagan, 402 F. Supp. 178, 181 (E.D.N.Y.1975), aff'd without opinion, 538 F.2d 311 (2d Cir. 1976) (citation omitted). Res judicata or collateral estoppel applies only if there has been a prior judgment on the legal or factual merits of the case. Mitchell v. National Broadcasting Co. & Nygreen, 553 F.2d 265 (2d Cir. 1977). In view of the fact that Article 78 # 1 was dismissed without an adjudication on the merits and was afforded no res judicata effect upon further state actions, it also acts as no bar to subsequent federal litigation. Taylor v. New York City Transit Authority, 309 F. Supp. 785, 791 (E.D.N.Y.), aff'd, 433 F.2d 665 (2d Cir. 1970).

 However, Article 78 # 2 did result in an adjudication on the merits and, therefore, the res judicata effect of that proceeding depends upon whether the claims advanced here are sufficiently different from those brought in that proceeding. See Mitchell v. National Broadcasting Co. & Nygreen, supra; Graves v Olgiati, 550 F.2d 1327 (2d Cir. 1977); Lombard v. Board of Education, 502 F.2d 631 (2d Cir. 1974), cert. denied, 420 U.S. 976, 95 S. Ct. 1400, 43 L. Ed. 2d 656 (1975). As Judge Weinfeld has noted in Morpurgo v. Board of Higher Education in City of New York, 423 F. Supp. 704, 710 (S.D.N.Y.1976):

 [Although] res judicata would ordinarily operate to bar subsequent litigation of all claims that were or could have been asserted in a prior action, the application of that principle has been relaxed somewhat by the Court of Appeals in civil rights actions. The rule now appears to be that a plaintiff is not barred from asserting those constitutional claims that could have been, but were not, advanced in a state court proceeding; rather, he is barred from renewing only those claims specifically raised and passed upon by the state courts. (footnote omitted)

 The only issues which plaintiff has arguably raised in both the state and federal actions are his claims of selective prosecution and denial of due process. In Newman v. Board of Education, 508 F.2d 277, 278 (2d Cir.), cert. denied, 420 U.S. 1004, 95 S. Ct. 1447, 43 L. Ed. 2d 762 (1975), the Court of Appeals concluded that appellant's due process claim had neither been raised nor adjudicated in state court where mere mention of the phrase "due process" had been made without any accompanying "elaborations or citations of authority." In Perrotta's ten-page petition to the New York Supreme Court, he referred only in passing to ...


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