presently seeks would have been available to plaintiff on his 9 NYCRR claim in the state court proceedings. For damages to be awarded in an Article 78 proceeding, they must be found to be "incidental to" the primary relief sought in the proceeding and must be such as the party could have recovered in an independent and separate action. CPLR § 7806.
Here, the primary relief plaintiff sought in state court was to have the Order to suspend his racing license reversed because the finding that he raced with lack of effort was not supported by substantial evidence. The essence of plaintiff's present claim that 9 NYCRR 4117.4(p) is unconstitutional is that his driving carefully could not constitute racing with lack of effort. The only relief available for this claim would be to have the statute declared unconstitutional generally, and as applied to him. Relief based on his claim that the regulation had been unconstitutionally applied to him could easily have been granted in the original proceeding, and would have been "incident to" the primary relief sought. In addition, declaratory relief based on his claim that the regulation was unconstitutional on its face would have been available to plaintiff in the original proceeding, by the court's treating the proceeding as a declaratory judgment action.
Based on the foregoing, we find that plaintiff could in fact have brought and received the full relief he now seeks under his 9 NYCRR claim in his prior Article 78 proceeding, but could not have brought his § 1983 claim in that proceeding. Hence, plaintiff is barred from bringing his 9 NYCRR claim, but not his § 1983 claim, before us by New York's doctrine of res judicata.
2. Dismissal Based on Collateral Estoppel
Plaintiff's two claims before this court are a § 1983 claim and a claim that 9 NYCRR § 4117.4(p), the statute making it a violation of law to race with "lack of effort", is unconstitutional. As explained above, plaintiff's 9 NYCRR claim is precluded by New York's doctrine of res judicata. In addition, we find that both plaintiff's 9 NYCRR claim and his § 1983 claim are barred by New York's doctrine of collateral estoppel.
Under New York's version of the doctrine of collateral estoppel, issues which have been both litigated and decided adversely against a party in one forum cannot be relitigated by that party in a second forum, so long as disposition of that issue was necessary to the decision. Winters v. Lavine, 574 F.2d 46, 57 and 68 n.24 (2d Cir. 1978). One reason this rule applies to issues first decided in state court and later raised in federal district court, is that district courts have no power to sit in review of state court decisions in civil proceedings, or to substitute their views for those of the state courts in such proceedings. Atlantic Coast Line R. Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 296, 26 L. Ed. 2d 234, 90 S. Ct. 1739 (1970); accord, Tang v. Appellate Division of the New York Supreme Court, First Dept., 487 F.2d 138, 141-43 (2d Cir. 1973), cert. denied, 416 U.S. 906, 40 L. Ed. 2d 111, 94 S. Ct. 1611 (1974).
It is clear from the documentation submitted by defendants in support of their motion, to wit: their memorandum of law and attached exhibits (including a copy of plaintiff's notice of motion to reargue before the Appellate Division and the supporting affirmation of plaintiff's attorney), that plaintiff did in fact raise and litigate the issues presently before this court at the state court level. Specifically, plaintiff raised both the issues of 9 NYCRR's general constitutionality and 9 NYCRR's constitutionality in application on several occasions in state court. Additionally, plaintiff raised the issue of whether or not the failure of defendants to provide and the Appellate Division to review the videotape denied him due process of law -- the essence of his § 1983 claim -- on several occasions in state court. The real questions, then, are whether the issues were actually disposed of by the state courts or whether their disposition was necessary to the courts' decisions. If either of these events are found to have occurred, then defendants will have met the requirements necessary to dismiss plaintiff's claims as a matter of collateral estoppel. See, e.g., Winters, 574 F.2d at 57 and 68 n.24.
Taking the events somewhat out of sequence, the last time plaintiff raised the issues now before us in a state court was in his motion for leave to appeal to the New York Court of Appeals. The court denied his motion. Defendants suggest that this court action was sufficient to meet the requirements of New York's collateral estoppel doctrine. We disagree. plaintiff did not have an appeal as of right to the Court of Appeals. Hence, the court's action, in denying plaintiff leave to appeal without any comment, said nothing about the substance of plaintiff's claims. Thus, since the court's action cannot be said to have disposed of the issues plaintiff raised, plaintiff is not collaterally estopped from bringing any of his present claims by virtue of his prior attempt to appeal to the New York Court of Appeals.
In contrast, when plaintiff challenged the application of 9 NYCRR 4117.4(p) before the Appellate Division, that court's response did effect his present ability to raise the claim before us now. On that occasion, plaintiff raised the issue of whether 9 NYCRR 4117.4(p) was unconstitutional as applied to him. This occurred during plaintiff's initial Article 78 proceeding before the Appellate Division. Plaintiff argues that this issue was not disposed of by the Appellate Division, since it was not specifically mentioned in the court's decision. However, an issue need not have been singled out in a decision for it to have been disposed of by the decision. It can have been decided sub silentio. As held by the United States Supreme Court in Grubb v. Public Utilities Comm'n, 281 U.S. 470, 477-78, 74 L. Ed. 972, 50 S. Ct. 374 (1930) and followed by the Second Circuit Court of Appeals in Winters, 574 F.2d at 61, we find that since the issue of whether or not the statute at issue was unconstitutionally applied to plaintiff was directly addressed by plaintiff in his argument, it was "necessarily resolved against [him]" by the court's finding that the statute was correctly applied to him. Hence, plaintiff is collaterally estopped from relitigating the constitutionality of 9 NYCRR 4117.4(p) as applied to him in this court.
In addition, we find that on the one other occasion plaintiff raised issues presently before this court -- in his motion to reargue his case before the Appellate Division -- that court's response effected plaintiff's ability to raise issues he presently raises under 9 NYCRR and under § 1983. On that occasion, plaintiff raised the issue of 9 NYCRR's constitutionality generally, and as applied. However, with respect to his civil rights claim involving the videotape, his motion to reargue addressed only defendants' failure to provide the videotape to the court, as follows, at paragraph 11:
. . . the Attorney General refused to supply the exhibits to the court, and no reference is made to the videotape of this race, as part of the court's decision. It is violative of due process to decide such a devastating suspension to one's career and reputation upon less than a complete record.
The Appellate Division responded by denying plaintiff's motion to reargue, giving as its reason that the denial followed its "reading, filing, and deliberating on" the papers submitted in connection with the motion. As above explained, a court decision will not operate as a collateral estoppel unless the issues were disposed of or their disposition was necessary to the court's ruling. Although in the abstract, a court can deny a motion to reargue for many reasons, here plaintiff specifically presented all of the issues now before this court as "the" arguments supporting his motion, and the state court specifically stated that its decision was made only after having taken these arguments into consideration. Since the decision states that it took these arguments into consideration, its decision denying the motion necessarily constitutes a response to plaintiff's arguments, indicating that they were unpersuasive. It is true that he did not raise in either his initial proceeding or in his motion to reargue that the Appellate Division must view the videotape before making its decision, but we find such an argument to be frivolous. The Appellate Division is in no position to make factual findings concerning the efforts plaintiff made in a race based on a videotape. More importantly, to the extent plaintiff is implicitly claiming such an argument, he failed to raise that argument before the Appellate Division, and he could have done so. Under these circumstances, we find that the issues plaintiff raised were necessarily disposed of by the state court's decision to deny plaintiff's motion. Hence, plaintiff is collaterally estopped from bringing all issues presently before this court.
Since plaintiff is thus precluded from bringing any of the matters presently before this court, by virtue of New York's doctrines of res judicata and collateral estoppel, defendants' motion to dismiss plaintiff's case for lack of subject matter jurisdiction is granted.
B. Plaintiff's Motion for a Preliminary Injunction
Plaintiff moves this Court for a Preliminary Injunction (1) to enjoin enforcement of plaintiff's thirty day license suspension during the pendency of this action, (2) to enjoin enforcement of 9 NYCRR § 4117.4(p) during the pendency of this action and to have it declared unconstitutional, and (3) to enjoin the Board's allegedly repetitive practice of failing to provide the courts with a videotape of the races in cases similar to the present action and to have the Board's practice declared unconstitutional as violative of plaintiff's right to due process of law. However, since we have dismissed plaintiff's case, plaintiff's motion for a preliminary injunction is rendered moot.
Thus, in summary, defendants' motion to dismiss is granted and plaintiff's motion for a preliminary injunction is denied.
Dated: White Plains, New York.
June 25, 1993
GERARD L. GOETTEL