The opinion of the court was delivered by: MACMAHON
MacMAHON, District Judge.
Defendant moves for summary judgment, pursuant to Rule 56, Fed.R.Civ.P. There are no material facts in issue. Defendant contends that plaintiff's claim is barred as a matter of law under the doctrine of res judicata. Alternatively, defendant contends that under the doctrine of collateral estoppel, plaintiff may not relitigate certain issues previously determined, and, accordingly, defendant is entitled to judgment as a matter of law.
This action arises from plaintiff's claim that he is owed past service credit under defendant's pension plan. The trustees of defendant Industry and Local 338 Pension Fund determined that plaintiff is entitled to seven years of past service credit for his nineteen years of employment at Matthew Brothers Inc.
On February 9, 1977, the New York State Insurance Department commenced an administrative proceeding against the trustees, alleging that they had violated New York Insurance Law Article III-A by failing to accord plaintiff past service credit for the full amount of his employment. The Insurance Department conducted a four-day evidentiary hearing, and on December 17, 1980 the Superintendent of Insurance decided against the trustees.
The trustees then brought a special Article 78 proceeding which was transferred to the Appellate Division, Second Department. On May 10, 1980, the Appellate Division reversed, holding that the Superintendent had exceeded his jurisdiction because the trustees had carried out their duties in accordance with the requirements of the pension plan and there was no showing that those requirements were arbitrary or capricious. Heithaus v. Lewis, 86 A.D.2d 323, 450 N.Y.S.2d 32 (2d Dept. 1982).
The doctrine of res judicata bars litigation of the same claim in a subsequent proceeding between the same parties or their privies with respect to issues actually decided as well as those which might have been decided. Winters v. Lavine, 574 F.2d 46, 55-56 (2d Cir. 1978). Defendant argues that the instant complaint alleges the same claim as that determined by the Appellate Division in Heithaus v. Lewis, supra, namely, plaintiff's entitlement to past service pension credit, and, therefore, that plaintiff is bound by that earlier judgment. Plaintiff counters that his complaint is not precluded by the previous decision because (1) he was not a party or a "privy" to the earlier proceeding, and (2) the claims in the two proceedings are not the same.
"It is a violation of due process for a judgment to be binding on a litigant who was not a party or a privy and therefore has never had an opportunity to be heard." Staten Island Rapid Transit Operating Authority v. I.C.C., 718 F.2d 533, 542 (2d Cir. 1983), citing Parklane Hosiery Co. v. Shore, 439 U.S. 322, 327 & n.7, 58 L. Ed. 2d 552, 99 S. Ct. 645 (1979). "Privity," for purposes of judicial finality, generally means:
"concurrent relationship to the same right of property; successive relationship to the same right of property; or representation of the interests of the same person." Staten Island Rapid Transit Operating Authority v. I.C.C., supra, 718 F.2d at 543, citing 1B J. Moore & T. Currier, Moore's Federal Practice P0.411 at 1255 (2d ed. 1965). Plaaintiff is therefore bound by the prior judgment if his interests were adequately represented by the Department of Insurance, and the Department was vested with the authority of representation. See, e.g., Ellentuck v. Klein, 570 F.2d 414, 425 (2d Cir. 1978).
New York CPLR § 7802(c) (McKinney 1981) provides that:
"Where the [Article 78] proceeding is brought to restrain a body or officer from proceeding without or in excess of its jurisdiction in favor of another, the latter shall be joined as a party."
The effect of this provision is to require joinder of a party in an Article 78 proceecing where that party's interest is at stake. Since plaintiff was not joined in the Article 78 proceeding, his interest was not adequately represented.
Moreover, although the Department of Insurance has broad statutory powers of investigation and accounting,
we find no indication that the Department is authorized to litigate on behalf of citizens. See N.Y. Insurance Law § 37 (McKinney 1983.
Furthermore, plaintiff never authorized the Department to represent him. The Department brought the proceeding on its own volition, and plaintiff neither exercised nor possessed any control over the action at any level. He attended only one of the four days of hearings, and then only because the Department called him to testify. He was never given an opportunity to present evidence, to make legal arguments, or to call witnesses.