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HEATH v. WARNER COMMUNS.

June 27, 1995

GEORGE HEATH, Plaintiff, against WARNER COMMUNICATIONS, INC., STEVEN ROSS, BERNARD R. SORKIN, NEW YORK STATE CRIME VICTIMS BOARD, BARBARA A. LEAK, Chairperson of the New York State Crime Victims Board, LORRAINE FELEGY, GENNARO A. FISCHETTI, GEORGE L. GROBE, FRANK MARIN, DIANE McGRATH-McKECHNIE, ANGELO PETROMELIS, Individually and in their capacities as members of the New York State Crime Victims Board, Defendants.


The opinion of the court was delivered by: JOHN E. SPRIZZO

 SPRIZZO, D.J.:

 Plaintiff George Heath, acting pro se, brings the instant action against defendants Warner Communications, Inc., ("Warner Comm."), *fn1" Steven Ross, *fn2" Bernard R. Sorkin (collectively "the Warner defendants"), the New York State Crime Victims Board (the "NYCV Board"), Barbara A. Leak, Diane McGrath-McKechnie, Lorraine Felegy, Gennaro A. Fischetti, Angelo Petromelis, George L. Grobe *fn3" and Frank Marin (collectively "the Board defendants"). In this action, Heath claims, inter alia, that defendants violated his constitutional rights by applying former section 632-a of the New York Executive Law. Pursuant to Rule 56 of the Federal Rules of Civil Procedure, defendants move for summary judgment based upon, inter alia, the doctrine of res judicata. For the reasons that follow, summary judgment is granted.

 BACKGROUND

 On May 4, 1977, John Wojtowicz and Artists Entertainment Complex, Inc. ("A.E.C.") entered into a settlement agreement. Defendants' Statement Pursuant to Local Rule 3(g) ("Deft. 3(g) St.") P 1; Pierce Aff. P 3, Exh. A; Graber Decl. P 5, Exh. A. The settlement agreement provided that Wojtowicz would receive one percent of the net profits of the film "Dog Day Afternoon." *fn4" Deft. 3(g) St P 1; Pierce Aff. P 3, Exh. A; Graber Decl. P 5, Exh. A. The settlement agreement also provided that plaintiff George Heath would receive 6 2/3 percent of that one percent share. Deft. 3(g) St. P 2; Pierce Aff. P 3, Exh. A; Graber Decl. PP 4-5, Exh. A. Neither Warner Bros., Inc. ("Warner Bros."), which was the film distribution agent for the movie, *fn5" nor Heath was a party to the settlement agreement. Deft. 3(g) St. P 3; Pierce Aff. P 3, Exh. A; Graber Decl. P 5, Exh. A.

 Prior to the disbursement of any profits under the settlement agreement, however, the State of New York enacted former section 632-a of the New York Executive Law. Deft. 3(g) St. P 4. The statute required that all royalties owed to a convicted person, if generated from an artistic depiction of his crime, must be paid to the NYCV Board for the benefit of victims of that crime. See N.Y. Exec. Law ยง 632-a (repealed 1992). In October 1977, the NYCV Board directed Warner Bros. and A.E.C. to comply with the statute. Deft. 3(g) St. P 5; Pierce Aff. P 6, Exh. B. In November 1977, Warner Bros. paid certain royalties to the NYCV Board, and thereafter, three victims recovered civil judgments against Wojtowicz in the Supreme Court, Kings County of the State of New York. Pierce Aff. P 7; Graber Decl. P 6. The NYCV Board, as statutorily required, paid the funds to these victims thereby exhausting the escrow account. Pierce Aff. P 7; Graber Decl. P 6.

 In August 1978, Heath commenced a declaratory action in the Supreme Court, New York County of the State of New York against, inter alia, A.E.C., Warner Bros. and the NYCV Board. In that action, Heath sought a declaration concerning his rights to profits paid by Warner Bros. to the NYCV Board and challenged the constitutionality of former section 632-a. On October 26, 1981, the state court held that Heath was entitled to his contractual share, but only "after disposition of all statutorily mandated payments." Pierce Aff. P 8, Exh. C; Graber Decl. P 7, Exh. B. On October 29, 1982, the Appellate Division, First Department affirmed. Pierce Aff. P 8; Graber Decl. P 7. On January 4, 1983, the New York Court of Appeals denied leave to appeal. Pierce Aff. P 8; Graber Decl. P 7. *fn6"

 In November 1982, Heath commenced a virtually identical action in the United States District Court for the Northern District of New York. In that action, Heath claimed that Warner Bros. had breached the settlement agreement, and that Warner Bros. and the NYCV Board had conspired to deprive him of his constitutional rights. Pierce Aff. P 9; Graber Decl. P 8. On June 18, 1984, the district court held that the action was barred by the relevant statute of limitations and by the state court action under the doctrine of res judicata, and that Heath otherwise failed to state a cause of action. Pierce Aff. P 9; Graber Decl. P 8. On March 15, 1985, the Second Circuit affirmed. Pierce Aff. P 9; Graber Decl. P 8. On May 10, 1985, the Second Circuit denied Heath's petition for a rehearing en banc. Pierce Aff. P 9; Graber Decl. P 8.

 In December 1983, the NYCV Board declined to accept new royalties from Warner Bros., reasoning that its jurisdiction had terminated under the statute. Pierce Aff. P 10. As a result, Warner Bros. commenced an interpleader action in the Supreme Court, New York County to determine entitlement to accrued royalties. By decision and order dated December 10, 1986, the state court ordered Warner Bros. to direct the accrued funds, as well as future accruals, to the NYCV Board. Pierce Aff. P 10, Exh. D; Graber Decl. P 9, Exh. C. By order dated May 3, 1988, the Appellate Division denied a motion for summary judgment by Heath and Wojtowicz. Pierce Aff. P 10; Graber Decl. P 9. On February 9, 1989, the Court of Appeals denied leave to appeal. Pierce Aff. P 10; Graber Decl. P 9. On April 24, 1989, the United States Supreme Court denied certiorari. Pierce Aff. P 10; Graber Decl. P 9.

 On January 18, 1985, Heath commenced an action, purportedly on behalf of Heath and Wojtowicz, against, inter alia, A.E.C., Warner Comm., Warner Bros., Pierce, Sorkin and the NYCV Board in the United States District Court for the Southern District of New York. See Heath v. Warner Communications, Inc., LEXIS GENFED Library, DIST File, 1986 WL 6169 (S.D.N.Y. 1986). In that action, Heath claimed that defendants deprived him of due process of law by applying the unconstitutional statute, breached the settlement agreement and fraudulently induced Wojtowicz to enter the settlement agreement. Id. at *3. By memorandum opinion and order dated May 27, 1986, the district court held that the action was barred by the earlier state and federal actions under the doctrine of res judicata. Id. at *6. On June 18, 1986, the district court enjoined Heath individually and on behalf of Wojtowicz from commencing further litigation regarding their rights under the settlement agreement without leave of court. Pierce Aff. P 12, Exh. F; Graber Decl. P 11, Exh. E. On May 14, 1987, the Second Circuit dismissed their appeal. Pierce Aff. P 12; Graber Decl. P 11. On November 2, 1987, the Supreme Court denied certiorari. Pierce Aff. P 12; Graber Decl. P 11.

 In 1987, the NYCV Board established a new escrow account to receive further payments from Warner Bros. Pierce Aff. P 13; Graber Decl. P 12. On December 10, 1991, prior to a final distribution of the accrued funds, the Supreme Court held that former section 632-a was unconstitutional. See Simon & Schuster, Inc. v. Members of the New York State Crime Victims Bd., 502 U.S. 105, 116 L. Ed. 2d 476, 112 S. Ct. 501 (1991).

 On March 9, 1992, the NYCV Board commenced an interpleader action in the Supreme Court, New York County to determine entitlement to any accrued royalties, which had been forwarded by Warner Bros. to the NYCV Board prior to the invalidation of former section 632-a. Pierce Aff. P 14; Graber Decl. P 13. The state court obtained jurisdiction over eighteen defendants-claimants, including both Heath and Wojtowicz, three victims of Wojtowicz and his former spouse. Graber Decl. P 13. On February 4, 1993, the state court discharged the NYCV Board as stakeholder. Graber Decl. P 13. On June 5, 1995, the state court held, inter alia, that Wojtowicz's criminal defense attorneys and his former spouse are entitled to the accrued royalties and that Wojtowicz, his criminal defense attorneys, Heath and the New York City Human Resources Administration are entitled to any future royalties. Supplemental Affidavit of Phillip pierce ("Pierce Supp. Aff.") P 8, Exh. E; Supplemental Declaration of Joel Graber Sworn to May 26, 1995 ("Graber Supp. Decl.") P 12, Exhs. A, B. By decision and order dated June 1, 1995, the Appellate Division, First Department affirmed. See Letter from Phillip Pierce dated June 6, 1995; Letter from Joel Graber dated June 8, 1995. *fn7"

 On June 3, 1992, Heath commenced the instant pro se action, which the Court must construe liberally and deferentially. *fn8" See Morello v. James, 810 F.2d 344, 346 (2d Cir. 1987). In the instant action, Heath generally claims that defendants violated his constitutional rights by applying former section 632-a of the New York Executive Law. Verified Complaint P 1. More specifically, in his first cause of action, Heath claims that Warner Comm. fraudulently induced him to enter into the settlement agreement. Id. PP 18-21. In his second cause of action, Heath claims that the Warner defendants breached the settlement agreement by forwarding accrued royalties to the NYCV Board. Id. PP 22-24. In his third cause of action, Heath claims that the Board defendants violated his rights by retroactively implementing former section 632-a, which has ...


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