allegations of his constitutional rights." Id. P 49. Similarly, he claims that neither Bell nor Waldvogel advised the Appellate Division of the "new evidence" of the "fraudulent misrepresentations," thereby "violating McArthur's Constitutionally protected rights to due process, and rendering the Appeal moot." Id. PP 50, 52. However, on or about September 10, 1993, McArthur notified the Appellate Division of the "new evidence" on a "Motion to Set Aside an Order of Contempt."
McArthur's appeal of the lower court's judgment in the state proceedings was pending before the Appellate Division at the time of McArthur I. After dismissal of the 1991 Action in McArthur I, the Appellate Division, Fourth Department, by decision dated February 4, 1994, as amended April 15, 1994, unanimously dismissed the upward modification in child support on the ground that Bell failed to sustain her burden of proof on the issue of modification. See McArthur v. Bell, 201 A.D.2d 974, 609 N.Y.S.2d 713 (4th Dep't 1994). Based on that determination, the court expressly declined to consider McArthur's "contention that the hearing court was biased." 609 N.Y.S.2d at 714. In addition, the court vacated the award of attorney's fees, and remitted the matter for an adversarial hearing as to attorney's fees. Id. McArthur complains that the Appellate Division failed to address his allegations of violations of his constitutional rights and defendant Waldvogel's "acts of misconduct." On May 10, 1994, the New York Court of Appeals dismissed Bell's motion for leave to appeal the Appellate Division's order.
Thereafter, in June 1994, Waldvogel again sought an award of attorney's fees in the state proceedings. In this respect, McArthur claims that Waldvogel "once again further violated McArthur's right to due process by filing yet another desperate State civil action for unwarranted attorney's fees again on the basis of the . . . false, inaccurate and misleading evidence." Complaint PP 58-59.
McArthur then commenced this action, asserting claims for violation of due process and equal protection, and state law claims for, inter alia, negligence, "negligent abuse of process," "reckless abuse of process," fraud, deceit, "negligent intentional infliction of emotional distress" and "reckless intentional infliction of emotional distress." Defendants move to dismiss the federal claims on the grounds relied on in McArthur I and as barred by the determinations in McArthur I and the applicable statute of limitations. Upon consideration, this Court agrees with defendants that McArthur's federal claims must be dismissed.
This action is based essentially on the events that formed the basis of the 1991 Action, and McArthur attempts to assert the same or similar federal claims to those asserted in the 1991 Action. This Court dismissed McArthur's federal claims in the 1991 Action for lack of jurisdiction and, alternatively, on the merits, and McArthur failed to move for reconsideration or to appeal the judgment of dismissal. This Court's determination that it lacked jurisdiction over McArthur's federal claims, see McArthur I, 788 F. Supp. at 708-09, is entitled to preclusive effect. As a result, McArthur is precluded from attempting to obtain a different result on that issue or a decision from which he can now appeal that adverse determination. Similarly, this Court's alternative determination dismissing McArthur's federal claims on the merits should also be given preclusive effect. McArthur's allegations as to events that occurred after the 1991 Action do not affect the prior dismissal of his federal claims. McArthur's claim of "new evidence" to now prove that Bell and Goldrick altered and/or misrepresented documents used as evidence in the state proceedings or that such evidence deceived the state trial judge is irrelevant, since this Court previously rejected his federal claims even accepting the truth of those allegations. Likewise, McArthur's claim that his constitutional rights were violated by Bell and Waldvogel when they failed to advise the Appellate Division of the alleged fraudulent misrepresentations was, at least, implicit in the 1991 Action, which was decided while the state court appeal was pending. In any event, there would not have been a new and independent violation of his constitutional rights by these alleged omissions.
The addition of the new defendants does not alter the preclusive effect of the determinations in McArthur I, because the party being precluded, i.e., McArthur, is the party who instituted and prosecuted the 1991 Action, and the new defendants are, for purposes of preclusion, in privity with the McArthur I Defendants. Thus, this action must be dismissed against those new defendants whom McArthur alleges caused or allowed Bell and Goldrick to present perjured testimony and fraudulent documents, namely, supervisors of Goldrick and/or Bell in the SCDAC (i.e., defendants Caputo, Poerio, and Penny) and those involved in preparation of Bell's tax returns (i.e., defendants Robert Bell and Bauccio).
Alternatively, McArthur's federal claims must be dismissed for the reasons stated in McArthur I. Even assuming this Court has jurisdiction,
as this Court observed in McArthur I, the requirements of due process are satisfied by an adequate post-deprivation remedy (which, it turns out, McArthur successfully pursued). McArthur I, 788 F. Supp. at 709-10. In addition, McArthur's allegations provide no basis for an equal protection claim. He does not allege any disparate treatment based upon invidious discrimination. See, e.g., Reed v. Reed, 404 U.S. 71, 75-76, 30 L. Ed. 2d 225, 92 S. Ct. 251 (1971) (Equal protection Clause requires that persons similarly situated be treated equally).
In any event, McArthur's federal claims are barred by the applicable three-year statute of limitations. See Owens v. Okure, 488 U.S. 235, 102 L. Ed. 2d 594, 109 S. Ct. 573 (1989) (three-year statute of limitations of CPLR 214 governs § 1983 claims in New York). McArthur commenced this action on June 2, 1994. Thus, any claims that accrued before June 2, 1991 are time-barred. Because McArthur's federal claims are grounded in events that allegedly occurred during the state proceedings prior to June 1991, his federal claims are barred.
Consequently, dismissal of McArthur's federal claims would once again require dismissal of his state law claims for lack of jurisdiction.
For the above reasons, defendants' motions to dismiss are granted. The Clerk of the Court is directed to enter judgment dismissing the complaint and to close the file in this matter.
LEONARD D. WEXLER
UNITED STATES DISTRICT JUDGE
Dated: Hauppauge, New York
January 31, 1996