The opinion of the court was delivered by: LEWIS KAPLAN, District Judge
Plaintiff, a former New York City detective of African
American descent, brings this action pursuant to Title VD of the Civil
Rights Act of 1964, as amended, 42 U.S.C. § 200e et seq.,
42 U.S.C. § 1981, 42 U.S.C. § 1983 and on state law grounds to
redress alleged employment discrimination. His employment was terminated
following his conviction on departmental charges. He claims that the
termination was racially motivated, the gravamen of the complaint being
that black police officers are more likely than white officers to be
charged, disciplined and terminated for identical infractions. Cpt ¶¶
15-19 & Ex. 1. The complaint does not allege that plaintiff did not
commit the offenses of which he was convicted. Defendant moves for
summary judgment dismissing the complaint on the ground of issue
preclusion on the theory that the plaintiff is foreclosed from
challenging his termination as racially motivated by the judgment against
him in a previous Article 78 proceeding in which he challenged his
termination on the ground, among others, that it was racially motivated.
It is undisputed that plaintiff brought an Article 78 proceeding
against the defendant City and others in April 1997 in which he sought
annulment of the decision terminating his employment, reinstatement, back
pay, and other relief. Fraenkel Decl. Ex. A, The amended petition
alleged, among other things, that plaintiff's discharge "was disparate
treatment in that other officers similarly situated and/or accused of
conduct far more offensive were imposed far more lenient punishment" and
that "[Respondents] [sic] decision to terminate petitioner was
racially biased in that other non minority police officers
similarly situated and/or accused of significantly more serious
violations were issued inconsistent and lenient punishments."
Id. ¶¶ 27, 31. The Appellate Division, to which the petition
was transferred from Special Term, dismissed the petition, writing:
"Respondent's findings that petitioner knowingly
associated with a person he
reasonably believed was engaged in criminal
activity, and made false and misleading statements
in an official Department investigation, are
supported by substantial evidence, including, in
particular, petitioner's own testimony in the
official investigation. No basis exists to disturb
respondent's credibility findings [citation
omitted]. We have considered petitioner's
other arguments, including that the penalty of
dismissal is unduly harsh, and find them to be
without merit." Richardson v. Safir,
258 A.D.2d 328, 328-29, 685 N.Y.S.2d 209, 210 (1st
Dept. 1999)(emphasis added).
As this Court previously has held, where an Article 78 petition seeks
annulment of a employment disciplinary decision on the ground that it was
discriminatory or retaliatory, a determination by the state courts that
the decision was supported by substantial evidence "necessarily implie[s]
rejection of [the] claim that [the] termination was discriminatory and
retaliatory" and thus forecloses a similar contention in a subsequent
federal action. Latino Officers Ass'n of the City of New York, Inc.
v. City of New York, 253 F. Supp.2d 771, 787 (S.D.N.Y. 2003).
Plaintiff seeks to avoid this holding by a conclusory affirmation of
his attorney, which asserts without any supporting evidence that the
issue "was not litigated before either the New York Supreme Court or the
Appellate Division," that plaintiff "had no opportunity to present proof
on this issue, and [that] neither party presented any proof on the issue
as part of the Article 78 Proceeding." Zelman Aff. ¶ 3.
The assertion that the plaintiff "had no opportunity to present proof
on" the issue of the alleged racial motivation for his termination is
baseless. There is nothing whatever in the record to suggest that
plaintiff was not entirely free in the state court proceeding to present
whatever evidence he thought fit. Moreover, under the law of New York,
which controls the preclusive effect of the New York judgment here at
issue, see Latino Officers Ass'n, 253 F. Supp.2d at 783 (citing
authorities), it is not necessary that the issue have been "actually
litigated" in the sense that evidence have been offered on the point. New
York requires only that the issue "have been properly raised by the
pleadings or otherwise placed in issue and actually determined in the
prior proceeding." Halyalkar v. Board of Regents, 72 N.Y.2d 261,
268, 532 N.Y.S.2d 85, 89 (1988).
Here, plaintiff's amended petition alleged a racial motivation for his
termination. The answer to the amended petition denied that allegation.
Fraenkel Decl., Feb. 3, 2004, Ex. G, at A64. The issue of the alleged
racial motive therefore was actually litigated in the sense required by
the law of New York and necessarily decided adversely to plaintiff.*fn1
Issue preclusion forecloses any contrary
contention in this case. The Court has considered plaintiff's other
contentions and concluded that they lack merit.
Accordingly, defendants' motion for summary judgment dismissing the
complaint is granted.