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ZBRYSKI v. BOARD OF TRUSTEES OF N.Y. FIRE DEPT PENSION FUND

October 1, 2004.

WALTER ZBRYSKI, Plaintiff,
v.
THE BOARD OF TRUSTEES OF THE NEW YORK FIRE DEPARTMENT PENSION FUND, THE NEW YORK FIRE DEPARTMENT, THE CITY OF NEW YORK, MAGDA M. DECONINCK, PETER SHERWOOD, ATTORNEYS FOR CORPORATION COUNSEL, CITY OF NEW YORK, KAHN & HOROWITZ PC, IRWIN KAHN, IRVIN LEDERER, and GREGORY J. PERRIN, Defendants.



The opinion of the court was delivered by: RICHARD CASEY, District Judge

MEMORANDUM OPINION & ORDER

Walter Zbryski ("Plaintiff") was a New York City firefighter thrice injured in the line of duty, the latest injury occurring on June 2, 1988. The Board of Trustees of the New York Fire Department Pension Fund (the "Trustees") denied Plaintiff's application for accidental disability retirement status. Plaintiff then filed a state-court action challenging the Trustees' decision. That action was resolved in favor of the Trustees, and Plaintiff's appeal was dismissed. Eight years after Plaintiff's state-court appeal was dismissed, Plaintiff filed this suit pro se against the Trustees, the New York City Fire Department, the City of New York, the members of the Corporation Counsel's office who represented the Trustees in the state-court suit, and Plaintiff's own attorneys in the state case (collectively, "Defendants"). Now before the Court are Defendants' motions for summary judgment. For the following reasons, Defendants' motions are GRANTED. I. BACKGROUND

Plaintiff became a member of the New York City Fire Department on April 7, 1979. On December 29, 1979, Plaintiff's engine company responded to a fire in a three-story building. As Plaintiff was climbing up a ladder to rescue a woman in the building, the woman jumped from a window onto Plaintiff, knocking him to the sidewalk below. Plaintiff injured his knees, back, and face in the fall. Plaintiff again injured himself on June 4, 1986, when he ruptured his Achilles tendon on a broken step while inspecting a building in Brooklyn. The third injury occurred on June 2, 1988, when Plaintiff was again inspecting buildings in Brooklyn for fire-code violations. Plaintiff injured his back when attempting to open a fire hydrant that was stuck.

  The Fire Department Pension Fund's Medical Board (the "Medical Board") concluded that Plaintiff was disabled as a result of his back condition, but also determined that the injuries sustained in the line of duty were not so severe as to be the cause of the disability. (See City Defendants' Statement Pursuant to Local Rule 56.1 [City Defs.' 56.1 Statement], Ex. 1, Findings of the Medical Board dated Aug. 29, 1990.) The Medical Board recommended that Plaintiff be given ordinary medical disability retirement, and not accidental disability retirement. (Id.) On October 23, 1990, the Trustees agreed with the Medical Board's decision, and denied Plaintiff's application for accidental disability retirement by a tie vote.*fn1 (See id., Ex. 2, Transcript of Proceedings Before the Trustees on Oct. 23, 1990.) Following the Trustees' denial of accidental disability pension, Plaintiff retained attorneys to represent him in a state-court proceeding under N.Y.C.P.L.R. article 78*fn2 challenging the Trustees' decision on the ground that it was arbitrary and capricious. On August 8, 1991, the New York Supreme Court, Kings County, dismissed the petition. (See City Defs.' 56.1 Statement, Ex. 3, In re Zbryski, Index No. 3059/91 (N.Y. Sup. Ct. Aug. 8, 1991) (unpublished order & judgment).) Plaintiff then retained the firm of Kahn & Horowitz PC to seek reargument on the petition and to file an appeal; Irwin Kahn, Esq., Gregory Perrin, Esq., and Irvin Lederer, Esq. were attorneys associated with the firm of Kahn & Horowitz PC (together, "Malpractice Defendants").

  It appears that Malpractice Defendants, on Plaintiff's behalf, appealed the Supreme Court's dismissal of the Article 78 petition, and then filed a second appeal when the Supreme Court denied the motion for reargument. (See Notice of Motion for Summary Judgment on Behalf of Defendants Kahn & Horowitz PC, Irwin Kahn, Irvin Lederer, and Gregory J. Perrin, Ex. I, Affirmation in Support of Motion for Summary Judgment in Zbryski v. Kahn ¶¶ 10-12.) It then appears that both appeals were dismissed; the second appeal was dismissed because a motion to reargue is not an appealable order, (see id., Ex. F, In re Zbryski, No. 92-07306 (2d Dep't Oct. 21, 1992) (unpublished decision & order on motion)), the first for failure to prosecute, (see id., Ex. I ¶ 15).

  Plaintiff brought a legal malpractice action in New York Supreme Court, New York County, against Malpractice Defendants. The Supreme Court granted Malpractice Defendants' motion for summary judgment on the ground that the appeal would not have been successful even if Malpractice Defendants had timely perfected it. (See id., Ex. J, Zbryski v. Kahn, Index No. 113332/96, at 9-10 (N.Y. Sup. Ct. Sept. 18, 1998) (unpublished decision & order).) The Appellate Division affirmed the trial court's decision, and the Court of Appeals denied leave to appeal. See Zbryski v. Kahn, 713 N.Y.S.2d 730, 731 (1st Dep't 2000); Zbryski v. Kahn, 745 N.E.2d 1015, 1015 (N.Y. 2001) (table decision).

  After unsuccessfully pursuing his claims in the state courts, Plaintiff filed suit in this Court. Plaintiff seeks what amounts to injunctive relief against the Trustees, the Fire Department, and the City of New York ordering that he be retired on accidental disability pension retroactive to the date of his retirement, as well as damages in the amount of $1 million for pain and suffering and mental anguish. (Complaint at 10.) He asks the Court to "prosecute" the Corporation Counsel attorneys who opposed his Article 78 petition for committing perjury and suppressing evidence during the proceedings, and to bar them from the practice of law.*fn3 (Id. at 12.) Finally, Plaintiff seeks unspecified relief against Malpractice Defendants for professional negligence. (Id. at 10, 11.)

  Reading the pro se complaint generously, as the Court must do, see McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999), Plaintiff's claims against the Trustees, the Fire Department, the City, and the Corporation Counsel attorneys are best characterized as alleged violations of federal rights under the color of state law pursuant to 42 U.S.C. § 1983. The claims against Malpractice Defendants sound in tort.

  Defendants argue that Plaintiffs' claims are time-barred, precluded by the doctrine of res judicata, and, in the case of the Corporation Counsel attorneys, barred by the doctrine of absolute official immunity. With the exception of the claims against the Corporation Counsel attorneys, the Court concludes that it lacks subject matter jurisdiction over the claims against Defendants because Plaintiff is seeking to appeal decisions of state courts to this lower federal court, prohibited under the Rooker-Feldman doctrine. The claims against the Corporation Counsel attorneys are barred by principles of official immunity.

  II. DISCUSSION

  A. Summary Judgment Standard

  Federal Rule of Civil Procedure 56(c) provides that summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Summary judgment should only be granted if "the nonmoving party `has failed to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof.'" Berger v. United States, 87 F.3d 60, 65 (2d Cir. 1996) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). When viewing the evidence, the Court must assess the record in the light most favorable to the nonmovant, resolve all ambiguities and draw all reasonable inferences in its favor. See Delaware & Hudson Ry. Co. v. Consol. Rail Corp., 902 F.2d 174, 177 (2d Cir. 1990).

  Issues of fact are genuine when "a reasonable jury could return a verdict for the nonmoving party," and such contested facts are material to the outcome of the particular litigation if the substantive law at issue so renders them. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "If, as to the issue on which summary judgment is sought, there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper." Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). Only when it is apparent that no rational trier of fact "could find in favor of the nonmoving party ...


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