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United States District Court, S.D. New York

February 20, 2004.

EDWARD J. RICHARDSON, Plaintiff, -against- CITY OF NEW YORK, Defendant

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 Page 2 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 Page 3 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.


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