The opinion of the court was delivered by: POLLACK
Defendants have moved to dismiss the amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) and (6) and plaintiff has cross-moved for summary judgment in her favor pursuant to Rule 56. For the reasons set forth below, the suit must be dismissed.
This suit seeks a declaration that it is unconstitutional to exact a $ 10 fee for filing a notice of appeal from a New York City Civil Court decision to the Appellate Term of the New York State Supreme Court. The plaintiff seeks a direction to the Clerk that he accept plaintiff's notice of appeal as filed timely and without requiring payment of the fee.
Plaintiff is a resident of Manhattan and a recipient of public assistance. In 1964, she commenced an action for assault and battery in New York State Supreme Court. At the close of a trial in 1969, the Court directed a verdict against the plaintiff. The Appellate Division reversed and ordered a new trial. Bernstein v. Berman, 39 App.Div.2d 525, 330 N.Y.S.2d 477 (1st Dept. 1972). The case was retried in the New York City Civil Court and on January 11, 1974, a jury rendered a verdict against plaintiff.
Plaintiff had been represented by counsel in the Civil Court but was unable to secure counsel for an appeal from the adverse verdict. She then attempted to prosecute an appeal Pro se by having a judgment entered on the verdict and serving a copy of the judgment on Berman's attorney. Plaintiff made several attempts to file a notice of appeal, each of which was rejected by the clerk of the Civil Court for failure to pay the ten dollar fee required by Section 1911(f) of the New York City Civil Court Act for filing a notice of appeal.
Plaintiff claimed that she could not afford the filing fee, and, on July 23, 1974, she moved, apparently pursuant to N.Y.C.P.L.R. §§ 1101 & 1102 (See N.Y.City Civ.Ct. Act § 2102), for leave to proceed with an appeal as a poor person. The state court denied that motion and two subsequent applications because her papers did not satisfy the pertinent statutory provisions. After the third such denial on January 13, 1975, plaintiff secured the assistance of the Community Law Offices, which then made a motion on her behalf for leave to allow her to appeal as a poor person. The Court denied that motion on June 4, 1975, on the ground that the time to appeal had expired.
Plaintiff then lodged a notice of appeal with the clerk and, according to her amended complaint in this action, argued before the Appellate Term of the Supreme Court
that the mandatory ten dollar filing fee violated the federal constitutional guarantee to equal protection (and) denied her access to the courts in violation of the federal constitutional entitlement to due process of law.
The complaint alleges that the Appellate Term rejected these contentions in a Per curiam affirmance of the lower court's dismissal on the ground that the appeal had not been timely taken. Further, that these arguments were reiterated in applications (in the Appellate Term and then in the Appellate Division) for leave to appeal to the Appellate Division of the Supreme Court. According to the complaint, they were denied respectively on January 5, 1976, and March 16, 1976. A notice to appeal to the Court of Appeals was lodged by plaintiff and the Court of Appeals dismissed that attempted appeal on June 17, 1976.
The instant action was commenced on September 30, 1977. Plaintiff's amended complaint names as defendants the State of New York, Francis X. Smith, Administrative Judge of the Civil Court, and Phoenix Ingram, Chief Clerk of that Court.
Defendants contend that res judicata or collateral estoppel bar this action. They note that plaintiff presented her federal constitutional claims in the prior state court proceeding, and that they were decided adversely by the state courts. Plaintiff responds that although her contentions were presented to the state courts, she should be permitted to relitigate the federal claims because the constitutional issues were never the subject of an opinion in the state courts.
This action is not barred by principles of res judicata, because neither the parties nor the cause of action are identical in the two actions. However, plaintiff would be precluded by collateral estoppel from relitigating her claims in this forum if she had a full and fair opportunity to litigate them in the first proceeding and if the claims were necessarily decided in the prior action. Winters v. Lavine, 574 F.2d 46, 58 n.14, 60 (2d Cir. 1978).
Plaintiff makes no claim that she was denied a full and fair opportunity to litigate her federal constitutional claims before the state courts. Indeed, her counsel claimed that they raised her federal claims "from the time that the first motion to proceed as a poor person was made" and thereafter "at all junctures in the state courts." ...