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United States District Court, S.D. New York

September 30, 2004.


The opinion of the court was delivered by: LORETTA PRESKA, District Judge


Plaintiff Quadrozzi Concrete Corp. ("Plaintiff" or "Quadrozzi") commenced this action by filing a complaint (the "Complaint") pursuant to 42 U.S.C. §§ 1983 and 1988, and Article 1, Section 11 of the New York State Constitution. Plaintiff seeks to recover compensatory and punitive damages from defendants the City of New York (the "City"), the New York City Department of Environmental Protection ("DEP"),*fn1 Rudolph W. Guiliani ("Giuliani"), Randy Mastro ("Mastro"), Joel A. Miele, Sr. ("Miele"), Stuart M. Erdfarb ("Erdfarb"), and Michael Best ("Best") (collectively, the "Defendants") for their alleged deprivation of Plaintiff's constitutional right to equal protection of the laws arising from the alleged de facto debarment of Quadrozzi since as early as 1994. Plaintiff also seeks to enjoin the Defendants from considering certain factors, including litigation history, criminal indictment and conviction and noncompliance with a subpoena, in the future when reviewing any Quadrozzi bid or request to supply concrete to a City contractor.

By notice of motion dated August 1, 2003, Defendants move to dismiss the Complaint pursuant to Fed.R. Civ. P. 12(b) (6) based upon the grounds that Plaintiff's claims are, inter alia, barred by res judicata and/or collateral estoppel.

  I. Legal Standards

  In deciding a motion to dismiss under Rule 12(b) (6), a complaint must be viewed in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 237 (1974); Yoder v. Orthomolecular Nutrition Inst., Inc., 751 F.2d 555, 562 (2d Cir. 1985). All well-pleaded factual allegations of a complaint must be accepted as true. City of Los Angeles v. Preferred Communications, Inc., 476 U.S. 488, 493 (1986); Mireee v. DeKalb County, 433 U.S. 25, 27 n. 2 (1977) (referring to "well-pleaded allegations"); Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir. 1993). "The complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference." Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995) (quoting Cortec Indus., Inc. v. Sum Holding L.P., 94 F.2d 42, 47 (2d Cir. 1991)). In order to avoid dismissal, a plaintiff must do more than plea mere "conclusory allegations or legal conclusions masquerading as factual conclusions." Gephardt v. Allspect, Inc., 96 F. Supp. 2d 331, 333 (S.D.N.Y. 2000) (quoting 2 James Wm. Moore, Moore's Federal Practice P 12.34[a] [b] (3d ed. 1997)). Dismissal is proper only when "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); accord Cohen v. Koenig, 25 F.3d 1168 (2d Cir. 1994).

  II. Background

  Except where noted, the following facts are drawn from the Complaint, documents incorporated in it by reference or integral to the Complaint, and matters of public record. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002) (court may consider documents incorporated by reference or integral to the complaint without converting the motion into one for summary judgment); Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 75 (2d Cir. 1998) (court may consider matters of public record).

  Founded by John Quadrozzi, Quadrozzi is a concrete company in the City of New York. (Compl. ¶ 21.) The DEP is the largest purchaser of concrete among the many City agencies, routinely used Quadrozzi for jobs. (Compl. ¶ 23.) In 1983, Guiliani was appointed United States Attorney for the Southern District of New York. (Compl. ¶ 26.) In this role, Guiliani obtained a series of indictments in cases against numerous members of various New York City crime families. (Compl. ¶¶ 30-35.) Mastro was appointed an Assistant United States Attorney for the Southern District of New York in 1984 and served as a key assistant to Guiliani in pursuit of these indictments. (Compl. ¶¶ 37-38.) In 1990, Guiliani was elected Mayor of the City of New York and in 1994, appointed Mastro as his Chief of Staff. (Compl. ¶ 36.) On or about June 11, 1992, John Quadrozzi was indicted for conspiracy to make illegal payments to union officials and in 1993, Mr. Quadrozzi pleaded guilty to charges of contempt for violating the consent order in which Mr. Quadrozzi had promised to refrain from associating with members of organized crime and conspiracy to violate the federal labor laws. (Compl. ¶¶ 45, 51.) The indictment received widespread publicity, which Plaintiff alleges "acutely embarrassed Guiliani and Mastro . . . [, who] believed John Quadrozzi had betrayed them, and decided to punish Mr. Quadrozzi by making sure his companies never received another major City contract." (Compl. ¶¶ 52, 54.) As a result of the guilty plea, the United States Department of Housing and Urban Development debarred Plaintiff from acting as a supplier to the agency, and the United States Environmental Protection Agency suspended Plaintiff from acting as a supplier to that agency. (Compl. ¶ 53.) Plaintiff alleges that Guiliani and Mastro devised a scheme to prevent Plaintiff from obtaining City contracts by directing the Office of Construction to issue a directive to various city agencies to discontinue using Quadrozzi. (Compl. ¶¶ 56-57.) This debarment continued even after the federal debarment and suspension of Plaintiff were lifted in 1998. (Compl. ¶ 61.)

  In August 2001, Plaintiff filed an Article 78 petition in the Supreme Court, Queens County, Index No. 22100/01. In its petition, Plaintiff sough a judgment, inter alia, (i) annulling the determination of respondent DEP dated April 24, 2001 which disapproved Quadrozzi as a concrete supplier to a prime contractor, Silverite Construction Corp. (the "Newton Creek denial"); (ii) for "declaratory relief to end the unlawful debarment that has been imposed against Quadrozzi . . ., in blatant violation of the applicable statutes and regulations governing the bidding process and in contemptuous disregard of Quadrozzi's constitutional rights"; and (iii) enjoining respondents from considering prior civil litigation, criminal indictment and conviction of Quadrozzi's principal and noncompliance with a subpoena in making any future determinations when considering a bid by Quadrozzi or a request to supply concrete to a successful bidder.

  In response to Quadrozzi's petition, the respondents*fn2 filed a Verified Answer, a supporting affidavit and Memorandum of Law arguing that DEP had a contractual right to approve or disapprove subcontractors and suppliers and the City's Procurement Policy Board Rules ("PPB Rules")*fn3 cited by Quadrozzi were inapplicable in the case.

  By a decision dated July 2, 2003 (the "Opinion"), Justice Peter J. O'Donoghue of the Supreme Court of New York, Queens County, denied Quadrozzi's Article 78 petition, as well as Quadrozzi's request for declaratory and injunctive relief. Judge O'Donoghue found that Quadrozzi, as a prospective supplier of concrete to the prime contractor, did not fall within the regulations cited by Quadrozzi and that DEP was not required to follow those regulations. (Opinion at 8-10.) Judge O'Donoghue held that Quadrozzi's de facto debarrment claim concerning 1994, 1997 and 1999 determinations was time-barred by the four-month statute of limitations applicable to Article 78 proceedings, (Opinion at 10), and that Plaintiff's challenge to the Newton Creek denial was meritless because DEP's rejection of Quadrozzi had a rational basis in the law and the record, (Opinion at 13-14.)

  Although Plaintiff's equal protection claim was based upon information available to Quadrozzi at the time it commenced the Article 78 proceeding, it did not assert that claim in the petition, but rather waited until it served its Memorandum of Law in reply to the City's answering papers. Quadrozzi's counsel admitted that he made an intentional tactical decision to refrain from raising the equal protection claim in the first instance because he wanted to know how the court would rule on his motion for discovery. (Declaration of Elaine Windholz, dated August 1, 2003 ("Windholz Decl."), Ex. F.) Justice O'Donoghue declined to rule on the equal protection claim because it was outside the scope of the petition and denied Quadrozzi's motion for leave to conduct discovery because no compelling need had been demonstrated. (Windholz Decl., Ex. G.) The Opinion was affirmed by the Appellate Division in a decision dated March 22, 2004. In the Matter of Quadrozzi Concrete Corp. v. Miele, 774 N.Y.S.2d 755 (2d Dep't 2004).

  In the instant action, Plaintiff alleges three claims: (1) that the PPB Rules create an irrational classification in violation the Equal Protection Clause as applied to Plaintiff because Plaintiff, as a subcontractor, has been subject to a de facto lifetime debarment while the PPB Rules limit the debarment of persons contracting directly with the City or its agencies to a maximum of five years (Compl. ¶¶ 92-99); (2) that the Defendants' "indefinite and apparently permanent blacklisting" of Plaintiff is in violation of the Equal Protection Clause because Plaintiff has been treated as a "Class of One" (Compl. ¶¶ 99-105) (collectively, the "federal claims"); and (3) that the PPB Rules create an irrational classification in violation of the New York State Constitution (the "state claim").

  III. Res Judicata

  "The doctrine of res judicata, or claim preclusion, holds that `a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.'" Monahan v. New York City Dep't of Corrections, 214 F.3d 275, 284-85 (2d Cir. 2000) (citations omitted); see also Waldman v. Village of Kiryas Joel, 207 F.3d 105, 108 (2d Cir. 2000) (res judicata "makes a final, valid judgment conclusive on the parties . . . as to all matters, fact and law, [that] were or should have been adjudicated in the proceeding") (internal quotation marks and citations omitted); Osipova v. New York City Dep't of Health, No. 02 Civ. 5072, 2002 U.S. Dist. LEXIS 22297, at *6 (S.D.N.Y. Nov. 19, 2002) ("once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy") (internal quotation marks and citations omitted).

  Res judicata "assures the finality of judgments by precluding a party to a lawsuit from litigating a claim more than once," Chase Manhattan Bank, N.A. v. Celotex Corp., 56 F.3d 343, 345 (2d Cir. 1995).

  To invoke res judicata, the Defendants must show: (1) an adjudication on the merits in the previous action; (2) that the previous lawsuit involved Plaintiff, or those in privity with Plaintiff; and (3) that the claims asserted in the subsequent suit were raised, or might have been raised, in the prior proceeding. Monahan, 214 F.3d at 284-85; Chase Manhattan, 56 F.3d at 345; see generally, Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 83-84 (1984) (res judicata is applicable to a § 1983 action). Quadrozzi's injunctive relief claim was included in both the Article 78 proceeding and this action. In its ad damnum, Plaintiff seeks to enjoin the Defendants from considering certain factors, including litigation history, criminal indictment and conviction and noncompliance with a subpoena, in making any future determinations when reviewing any Quadrozzi bid or request to supply to a City contractor, (Compl. at 27 ¶ 3 (Prayer for Relief)), which is the very same relief it sought and was denied in the Article 78 proceeding.

  Furthermore, Plaintiff's equal protection claims in this action could have been raised in the Article 78 proceeding. Indeed, it was Quadrozzi's failure to raise the equal protection claim properly, asserting it for the first time in its reply memorandum of law rather than the petition, that resulted in the court's decision not to consider said claim. (Opinion at 6.) The fact that the Opinion found that all claims prior to the April 24, 2001 Newton Creek denial were barred by the statute of limitations does not permit Plaintiff to raise these incidents here seeking injunctive relief because "[i]n New York, a dismissal on statute of limitations grounds operates as a dismissal on the merits for res judicata purposes." Karamoko v. New York City Hous. Auth., 170 F. Supp. 2d 372, 377 (S.D.N.Y. 2001) (citing Efco Corp. v. U.W. Marx, Inc., 124 F.3d 394, 397-98 (2d Cir. 1997)). This is so even where other claims based on the same facts would not themselves be time-barred. Id. (citations omitted).*fn4

  In Karamoko, the court summarized the law concerning the res judicata effect of Article 78 adjudications:

Under New York law, the doctrine of res judicata or claim preclusion bars future litigation of claims that were or could have been raised in a prior proceeding where that prior proceeding resulted in a final judgment on the merits. A party may not escape the effects of res judicata by `splitting' his claim into various suits, based on different legal theories, for it is the facts surrounding the transaction or occurrence which operate to constitute the cause of action for res judicata purposes, not the legal theory upon which a litigant relies. When the prior proceeding is brought pursuant to Article 78 of the CPLR, however, the application of res judicata is subject to certain important limitations.
Article 78 courts are courts of limited jurisdiction and are unable to award monetary damages. Res judicata thus does not bar claims for damages where a plaintiff has previously brought a related Article 78 proceeding alleging a violation of his constitutional rights, and subsequently . . . seeks monetary damages for the violation of those rights.
Id. at 376-77 (internal quotation marks and citations omitted). Quadrozzi sought, and had it been successful, would have been entitled to injunctive relief in its Article 78 proceeding. Thus, the federal claims in this action for the very same injunctive relief falls squarely within the scope of the Article 78 proceeding and the judgment rendered therein and therefore is barred by res judicata. This is also the case with respect to any injunctive relief sought with respect to the federal claims based upon claims prior to the April 24, 2001 Newton Creek denial because the finding that they are time-barred is given preclusive res judicata effect.

  However, res judicata does not bar Plaintiff's § 1983 claims for damages. See Colon v. Coughlin, 58 F.3d 865, 870 n. 3 (2d Cir. 1995) (res judicata does not bar a § 1983 action where plaintiff has previously brought an Article 78 proceeding).

  IV. Collateral Estoppel

  "Collateral estoppel, however, does apply to § 1983 actions." Moccio v. New York State Office of Court Admin., 95 F.3d 195, 200 (2d Cir. 1996). Collateral estoppel, or issue preclusion, is a doctrine related to, but distinct from, res judicata. See Flaherty v. Lang, 199 F.2d 607, 613 (2d Cir. 1999). This Court "is obliged to give the same issue preclusive effect to the Article 78 proceedings as would be given by the courts of New York." Latino Officers Ass'n v. City of New York, 253 F. Supp. 2d 771, 783 (S.D.N.Y. 2003). "Under New York law, collateral estoppel will preclude a federal court from deciding an issue if (1) the issue in question was actually and necessarily decided in a prior proceeding; and (2) the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the first proceeding." Moccio, 95 F.3d at 200 (2d Cir. 1996) (quoting Colon, 58 F.3d at 869). "Thus, collateral estoppel focuses on the rights, questions or facts that underlie a judicial decision; it does not focus on the legal theories underlying the complaint or decision." Beharry v. M.T.A. New York City Transit Auth., No. 96 Civ. 1203, 1999 U.S. Dist. LEXIS 3157, at *17 (S.D.N.Y. Mar. 17, 1999).

  Here, as noted, Quadrozzi's counsel made an intentional tactical decision to refrain from raising the equal protection claim in the Article 78 petition, waiting until serving the Memorandum of Law in reply to the City's answering papers, because he wanted to know how the court would rule on his motion for discovery. (Windholz Decl., Ex. F at ¶ 5.) Justice O'Donoghue declined to rule on the equal protection claim because it was outside the scope of the petition. (Windholz Decl., Ex. G.) Thus, whether or not Plaintiff's equal protection claim technically was or was not presented and ruled upon in the state court, the Court of Appeals has explained that "[t]he mere failure to raise an issue in state court does not . . . invariably save a federal plaintiff from issue preclusion under Rooker-Feldman." Vargas v. City of New York, 377 F.3d 200, 206-08 (2d Cir. 2004). Under the Rooker-Feldman doctrine, federal district courts have no subject matter jurisdiction over suits that seek to review, reverse, or modify final determinations by state courts in judicial proceedings, or that seek to resolve issues that are "inextricably intertwined" with earlier state court determinations. See Dist. of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fidelity Trust, 263 U.S. 413 (1923); Vargas, 377 F.3d at 205. As the Court of Appeals has explained, "inextricably intertwined' means, at a minimum, that where a federal plaintiff had an opportunity to litigate a claim in a state proceeding . . ., subsequent litigation will be barred under the Rooker-Feldman doctrine if it would be barred under the principles of preclusion." Id. Thus, even where a plaintiff's equal protection claim was never presented in state court, it will barred by Rooker-Feldman where the district court "would [be] forced to reconsider `the precise issue' on which the state court's decision rested." Id. at 206; see also Khal Charidim Kirvas Joel v. Village of Kiryas Joel, 935 F. Supp. 450, 455 (S.D.N.Y. 1996) ("The test is whether the federal district court would necessarily have to determine that the state court erred in order to find that the federal claims have merit.").

  The Court of Appeals in Vargas instructed that proper application of the law was illustrated by the district court in Latino Officers Ass'n v. City of New York, 253 F. Supp. 2d 771 (S.D.N.Y. 2003):

In Latino Officers, the district court considered the equal protection and First Amendment retaliation claims of three minority NYPD officers who . . . were dismissed for various infractions and brought unsuccessful Article 78 petitions challenging their dismissals. The first plaintiff neither raised nor had the Article 78 court decide whether his termination was discriminatory or retaliatory, so the court, distinguishing Moccio, held that his federal suit was not barred by Rooker-Feldman:
A finding that the decision to terminate was supported by substantial evidence — essentially a finding that it was rational — does not lead inexorably to the conclusion that race was not a motivating factor in the NYPD's decision to terminate him. Similarly, the court's determination that the penalty of termination did not `shock the conscience' essentially means that there was some rational basis for the termination, but does not preclude the possibility that race was a factor in determining the penalty. It is possible that race motivated defendants' decisions to terminate [the plaintiff], even though defendants had another articulated basis for the termination that the Article 78 court found to be rational.
The second plaintiff in Latino Officers, however, had contended in his Article 78 proceeding that his termination was retaliatory and discriminatory. The state court's conclusion that the penalty of dismissal did not shock the conscience, therefore, `necessarily implied rejection of [his] claim that his termination was discriminatory and retaliatory.' In such circumstances, `the federal claim [would] succeed[] only to the extent that the state court wrongly decided the issues before it,' and is thus barred by Rooker-Feldman.
Vargas, 377 F.3d at 207-08 (internal citations omitted, emphasis added).

  "[F]actual determinations in an Article 78 proceeding carry collateral estoppel effect." Beharry, 1999 U.S. Dist. LEXIS 3157, at *24. Here, the factual determinations made in the Opinion relating to the de facto debarment claim were considered exclusively as to the Newton Creek denial declining to approve Quadrozzi on that single project. The Opinion thus held that "[t]he fact that the DEP declined to approve Quadrozzi Concrete on a single project on April 24, 2001 does not constitute a de facto debarment imposed by the City of New York or any single agency." (Opinion at 12.) As to rational basis and lack of animus, the Court determined that with respect to the Newton Creek denial, the City had a rational basis for the decision and Quadrozzi's claim that "an unstated personal animus motivated the City's conduct towards Quadrozzi" and that there was a "stone walling, obfuscation and irrational behavior directed at Quadrozzi" was "not supported by the evidence submitted." (Opinion at 14.)

  To the extent that Plaintiff raises a claim for damages based upon constitutional violations, these claims are not barred by collateral estoppel because the Opinion did not consider whether the Newton Creek denial together with other determinations by the DEP or the City could constitute a de facto debarment. In other words it would not be inconsistent with the Opinion for this Court to accept, as the Opinion found, that the April 24, 2001 Newton Creek denial, alone, did not constitute a de facto debarment and that determination was not motivated by animus but then to find, when considering other determinations by the City collectively, that there was a de facto debarment or that Defendants were motivated by animus. However, to the extent Plaintiff could move forward with any such claims in this action, Plaintiff would still be precluded from relitigating the factual issues that were determinated against it in the Opinion. See Latino Officers, 253 F. Supp. 2d at 786 (where Article 78 court did not decide whether termination was discriminatory or retaliatory, plaintiff could move forward with wrongful termination claims except that plaintiff is precluded from relitigating factual issues determined against him).

  III. Time-Barred

  Nonetheless, to the extent that Plaintiff's equal protection claims are not barred by collateral estoppel, its federal claims, as stated in the Complaint, are time-barred by the statute of limitations applicable to § 1983 claims. See Owens v. Okure, 488 U.S. 235 (1989) (statute of limitations applicable to § 1983 claims is three years). A § 1983 claim accrues at the time the plaintiff knows or has reason to know of the injury which is the basis of his action. See Singleton v. City of New York, 632 F.2d 185, 191 (2d Cir. 1980). "[U]nder federal law, `the claim accrues when the plaintiff knows or has reason to know of the harm.'" Washington v. County of Rockland, 373 F.3d 310, 317 (2d Cir. 2004) (quoting Eagleston v. Guido, 41 F.3d 865, 871 (2d Cir. 1994)).

  Plaintiff knew or had reason to know the facts underlying its equal protection claims arising from the alleged de facto debarment of Quadrozzi as early as 1994, and Plaintiff does not allege otherwise. (See Compl. ¶ 57.) Indeed, the Complaint alleges that the retaliatory "scheme to prevent [Quadrozzi] from obtaining City contracts" was acted upon in August 1994, when "in accordance with Mastro's instructions, the Office of Construction issued a directive to various city agencies that `You are directed to discontinue using Quadrozzi based on the recommendations of the Mayor's Office of Construction.'" (Compl. ¶¶ 56-57.) Plaintiff's knowledge of the allegedly "irrational regulatory scheme" was equally known to Plaintiff at the time. Thus, by Plaintiff's own admission, Quadrozzi was aggrieved by the alleged de facto debarment in 1994, and it was incumbent on Quadrozzi to commence this § 1983 action from that alleged ban within three years. Even assuming arguendo a "debarment" which could extend for five years, the debarment would be lawful from 1994 to 1999,*fn5 and then Quadrozzi would have until August 2002 to commence this § 1983 action. Because Plaintiff did not file the Complaint until March 19, 2003, after the statute of limitations expired under either theory of notice, its § 1983 claims are time-barred as to acts prior to March 19, 2000.

  Plaintiff argues that the "continuing violation" exception applies and that therefore none of the acts alleged is time-barred from consideration. "As a general rule, courts in the Second Circuit have viewed continuing violation arguments with disfavor." Curtis v. Airborne Freight Corp., 87 F. Supp. 2d 234, 244 (S.D.N.Y. 2000). Indeed, only "compelling circumstances will warrant application of the exception to the statute of limitations." McMillan v. City of New York, No. 95 Civ. 5459, 1997 U.S. Dist. LEXIS 14312 (S.D.N.Y. Sept. 19, 1997), aff'd, No. 97-9261, 1998 U.S. App. LEXIS 12949 (2d Cir. May 29, 1998) (granting defendant's motion to dismiss). Moreover, courts have narrowly applied the "delayed accrual" theory. In Pinaud v. County of Suffolk, 52 F.3d 1139 (2d Cir. 1995), the Court of Appeals rejected the delayed accrual theory for plaintiff's claims against the county because the plaintiff knew about or at least had reason to know about any policy or custom then alleged because he encountered the underlying acts that are the basis of the alleged policy years earlier. Id. at 1157. The Court specifically noted that "a telling submission by [plaintiff's] counsel in February 1988 — still four months before the crucial statute of limitations date — details all the acts that [plaintiff] now claims provided him evidence of the County of Suffolk's `policy or custom' to produce the harms of which he complains." Id. Likewise, in Eagleston, the Court of Appeals explained its previous decision in Singleton:

The plaintiff in Singleton alleged the existence of a conspiracy to violate his civil rights, and contended that the separate acts of the defendants — each of which would have supported a claim for compensatory damages when the act was done — should be viewed as one transaction for the purpose of determining when the statute of limitations began to run. We disagreed:
The crucial time for accrual purposes is when the plaintiff becomes aware that he is suffering from a wrong for which damages may be recovered in a civil action. To permit him to wait and toll the running of the statute simply by asserting that a series of separate wrongs were committed pursuant to a conspiracy would be to enable him to defeat the purpose of the time-bar, which is to preclude the resuscitation of stale claims.
Eagleston, 41 F.3d at 871 (quoting Singleton, 632 F.2d at 192).

  Here, Quadrozzi's admissions in the Complaint demonstrate that Plaintiff has known about the underlying acts*fn6 that are the basis of the alleged violations since August 1994, or at the very latest, August 1999. See Petrosky v. New York State Dep't of Motor Vehicles, 72 F. Supp. 2d 39, 47-53 (N.D.N.Y. 1999) (in Title VII sex discrimination case, finding that "the continuing violation doctrine does not apply" because plaintiff "knew from the beginning that she was being sexually harassed"). There is no claim of or basis for finding fraud or concealment. Accordingly, Plaintiff has failed to demonstrate the "compelling circumstances" required to warrant the application of the continuing violation exception to the statute of limitations. Accordingly, only those acts occurring on or after March 19, 2000, may be considered as to Plaintiff's § 1983 claims.

  The only allegation in the Complaint of a determination by the DEP or other City agency after March 19, 2000, is the Newton Creek denial.*fn7 Because Plaintiff is precluded from relitigating the factual findings with respect to that determination, it may not be considered by this Court.*fn8 Thus, because Plaintiff fails to allege any acts that may be considered by this Court that are within the applicable statute of limitations and are not barred by res judicata, collateral estopppel, and/or the Rooker-Feldman doctrine, the federal claims must be dismissed.

  IV. Supplemental Jurisdiction

  Because the Court dismisses Plaintiff's federal claims, the Court declines, in the exercise of its discretion, to exercise supplemental jurisdiction over Plaintiff's state law claims. See 28 U.S.C. § 1367(c)(3). CONCLUSION

  For the above stated reasons, Defendants' motion to dismiss the Complaint (docket no. 10) is granted. The Clerk of the Court shall mark this action closed and all pending motions denied as moot.


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