Plaintiff also appealed that judgment, and, on February 6, 1997, the Appellate Division affirmed Justice Solomon's rulings in substantially all respects. Eng v. Bratton, 236 A.D.2d 234, 653 N.Y.S.2d 333 (1st Dep't 1997). Among other things, the Appellate Division stated that "the redetermined penalty conditioning [Eng]'s reinstatement on the result of a psychological evaluation was within [the police department]'s discretion." Id. (emphasis supplied). Thereafter, both parties cross-moved for reargument and/or leave to appeal to the New York Court of Appeals. On May 13, 1997, the Appellate Division denied plaintiff's motion for reargument except for modifying the above-quoted sentence to read as follows: "The redetermined penalty conditioning petitioner's restoration to duty on the result of a psychological evaluation was within [the police department]'s discretion." See Saltiel Aff. Exh. G (5/13/97 Decision) (emphasis supplied). The parties' reargument papers evidence that the purpose of this change was to reflect that plaintiff, having previously been reinstated by virtue of the Appelate Division's order of March 10, 1994, had not been terminated at the time the Commissioner entered the redetermined penalty on October 7, 1994 but simply suspended from active duty.
Alleging that the instant action is premised upon the same conduct and events that formed the basis of Eng's claims in the prior state court proceedings, defendants seek summary judgment here on the grounds of collateral estoppel and res judicata. The latter doctrine is clearly not a bar, since the relief of damages available to plaintiff in this proceeding was unavailable to him in the prior Article 78 proceedings. See Davidson v. Capuano, 792 F.2d 275 (2d Cir. 1986); see also Taylor v. Brentwood Union Free Sch. Dist., 908 F. Supp. 1165, 1178 (E.D.N.Y. 1995). As to collateral estoppel, however, the record is clear that the essential issues underlying all of plaintiff's instant claims except his claim of denial of procedural due process in relation to his ultimate dismissal were all fully litigated and resolved against him in the prior proceedings. See Eng v. Bratton, Index No. 102981/95, at 7-8 (Sept. 12, 1995 N.Y. Supreme Court Decision & Judgment) (Solomon, J.), aff'd, Eng v. Bratton, 236 A.D.2d 234, 653 N.Y.S.2d 333 (1st Dep't 1997). See also, e.g., Def. Notice of Motion Exh. BB, at PP 27, 29, 31 (2/2/95 Verified Petition); id. Exh. CC, at 22-23 (3/31/95 Memorandum in Support of Article 78 Petition); id. Exh. GG, at 7-11 (5/15/95 Reply Memorandum in Support of Article 78 Petition); id. Exh. KK, at 23-26 (11/15/95 Memorandum Appealing Decision of Supreme Court); id. Exh. LL, at 10-13 (12/12/96 Reply Memorandum Appealing Decision of Supreme Court). Accordingly, plaintiff is collaterally estopped from further relitigating these issues here. See Genova v. Town of Southampton, 776 F.2d 1560, 1561 (2d Cir. 1985) (per curiam). From the foregoing account, however, it is equally clear that the procedural due process claim relating to plaintiff's ultimate dismissal has not been litigated in any material respect, and the doctrine of collateral estoppel thus will not bar plaintiff from raising it here.
Defendants nevertheless contend that plaintiff's procedural due process claim must be dismissed since plaintiff no longer had a constitutionally protected property interest in his position once Commissioner Bratton placed him on "probation." See Board of Regents v. Roth, 408 U.S. 564, 576-78, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972) (property right in continued employment required to sustain procedural due process claim). While a beginning employee who is initially hired on a probationary basis has no property right in his employment, see Castro v. N.Y.C. Bd. of Educ., 777 F. Supp. 1113, 1117 (S.D.N.Y. 1990), Eng was not a "probationary" employee in that sense. He had held a fully tenured position as a police officer and was legally entitled to full reinstatement to that position once his initial dismissal was overturned in the first Article 78 proceeding. The fact that plaintiff was placed on "probation" in the sense of being suspended from active duty pending a psychological evaluation does not alter the fact of his reinstatement as a police officer and his entitlement to due process. See Acevedo v. Brown, 195 A.D.2d 164, 606 N.Y.S.2d 691 (1st Dep't 1994). Indeed, so as to leave no misimpression as to plaintiff's employment status under the redetermined penalty, the Appellate Division specifically amended the language in its order affirming the redetermined penalty to make clear that plaintiff's psychological evaluation was a condition, not to his "reinstatement" as a police officer, but simply to his "restoration to [active] duty." See Saltiel Aff. Exh. G (5/13/97 Decision); see also 8/13/97 Saltiel Letter & Exhs (plaintiff's submissions to Appellate Division urging clarification of the Order's language). Accordingly, at the time of his post-evaluation dismissal, plaintiff had a constitutionally protected property right in his position with the Department and was entitled to at least minimal procedural due process prior to dismissal. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1985).
Whether the requirements of Loudermill were met here is unclear, however, for genuine factual disputes exist as to what and how much notice plaintiff was given of his post-evaluation dismissal and how much opportunity, if any, he was given to be heard. See, e.g., Eng Aff. PP 8-12; Def. Exhs. AA, DD, & EE. Given these factual disputes, reasonable jurors could certainly differ as to whether defendants provided due process under the circumstances. See generally Todaro v. Norat, 112 F.3d 598, 599 (2d Cir. 1997); Catone v. Spielmann, 966 F. Supp. 1288, 1297 (N.D.N.Y. 1997).
For the foregoing reasons, the Court grants defendants' motion for summary judgment as to all claims except plaintiff's procedural due process claim, for which summary judgment is denied. Plaintiff's motion for summary judgment on this claim is likewise denied. The parties are further directed to telephone Chambers jointly on October 15, 1997 at 5:30 p.m. to schedule a firm trial date for this remaining claim.
JED S. RAKOFF, U.S.D.J.
Dated: New York, New York
October 6, 1997
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