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United States District Court, S.D. New York

October 1, 2004.


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


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.


  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 because the evidence to support its case is so slight" should a court grant summary judgment. Gallo v. Prudential Residential Servs., LP, 22 F.3d 1219, 1223-24 (2d Cir. 1994).

  B. The Rooker-Feldman Doctrine

  "The Rooker-Feldman doctrine holds that inferior federal courts lack subject matter jurisdiction `over cases that effectively seek review of judgments of state courts. . . .'" Phifer v. City of New York, 289 F.3d 49, 56 (2d Cir. 2002) (quoting Moccio v. New York State Office of Court Admin., 95 F.3d 195, 197 (2d Cir 1996)). A district court may raise the issue sua sponte at any time. Moccio, 95 F.3d at 198. The Supreme Court held in Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), that lower federal courts lack subject matter jurisdiction over claims to reverse or modify state-court judgments. See id. at 416. Sixty years later, the Court in District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983), held that lower federal courts lack subject matter jurisdiction over claims that are "inextricably intertwined" with a prior state-court judgment. See id. at 483 n. 16; Phifer, 289 F.3d at 56.

  The Second Circuit has explained:

If the precise claims raised in a state court proceeding are raised in the subsequent federal proceeding, Rooker-Feldman plainly will bar the action. On the other hand, . . . where the claims were never presented in the state court proceedings and the plaintiff did not have an opportunity to present the claims in those proceedings, the claims are not `inextricably intertwined' and therefore not barred by Rooker-Feldman.
Moccio, 95 F.3d at 198-99. Thus, Second Circuit case law creates a spectrum for evaluating Rooker-Feldman's application. Those claims already raised and rejected in state-court proceedings (which are prohibited by the doctrine of res judicata) cannot be resurrected in a federal suit; claims not presented but which would be precluded under principles of collateral estoppel are also "inextricably intertwined" and therefore barred; claims which were neither raised nor could have been raised in the prior state proceedings are not barred under Rooker-Feldman. See Phifer, 289 F.3d at 56; Latino Officers Ass'n v. City of New York, 253 F. Supp. 2d 771, 779 (S.D.N.Y. 2003).

  Some of Plaintiff's claims fit squarely within the first of those three categories. Plaintiff has already brought a malpractice action in state court against Khan & Horwitz P.C. and the individual attorneys named in this suit. Those claims were also raised and rejected in state-court proceedings and are thus barred under Rooker-Feldman. The claims arise out of the same facts and assert the same legal cause of action against the same parties.*fn4 Thus, the Court lacks subject matter jurisdiction over the claims against Malpractice Defendants.

  Plaintiff's § 1983 claims are not identical to those raised in the Article 78 proceeding. See Moccio, 95 F.3d at 200. The Second Circuit in Moccio held that res judicata does not apply to § 1983 claims brought after Article 78 proceedings. See id. The Court would still lack subject matter jurisdiction over those claims, however, if principles of collateral estoppel would preclude issues inherent in them. See Phifer, 289 F.3d at 56 (explaining courts must look at principles of both res judicata and collateral estoppel to determine if federal claims are inextricably intertwined with prior state judgments); Latino Officers Ass'n, 253 F. Supp. 2d at 783 (noting that although requested monetary relief not available in Article 78 proceeding, the court lacked subject matter jurisdiction if collateral estoppel applied). The Court's collateral-estoppel analysis is governed by New York law. See 28 U.S.C. § 1738 ("[J]udicial proceedings [of any State court] shall have the same full faith and credit in every court within the United States . . . as they have by law or usage in the courts of such State . . . from which they are taken."); Phifer, 289 F.3d at 56 (applying New York collateral estoppel rules when determining whether Rooker-Feldman barred federal claims not directly raised in Article 78 proceeding); Latino Officers Ass'n, 253 F. Supp. 2d at 780 (same).

  Issues are precluded from subsequent litigation under New York law 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. The burden of persuasion to show the state proceedings did not afford a full and fair opportunity to litigate the issue is on the party opposing application of collateral estoppel; the burden is on the party asserting collateral estoppel to establish that the issue was decided in the prior proceeding. Ryan v. New York Tel. Co., 467 N.E.2d 487, 491 (N.Y. 1984); Latino Officers Ass'n, 253 F. Supp. 2d at 783.

  The basis of Plaintiff's § 1983 suit appears to be that he was denied procedural due process when the Trustees made "illegal and arbitrary conclusions" concerning the cause of his disability. (Complaint at 1.) The underlying issue essential to the success of Plaintiffs' § 1983 claims — whether the Trustees' decision was arbitrary and capricious — was actually and necessarily decided in the state-court proceedings. In order to find a procedural due process violation, it would be necessary for this Court "to conclude that the protections offered to [Plaintiff] by the Article 78 proceeding were insufficient to satisfy constitutional due process." Moccio, 95 F.3d at 200. As the Second Circuit held in Moccio, "[s]uch a finding would run directly contrary to the prohibition in Feldman against lower federal court jurisdiction over `challenges to state-court decisions in particular cases arising out of judicial proceedings even if those challenges allege that the state court's action was unconstitutional.'" Id. (quoting Feldman, 460 U.S. at 486).

  Plaintiff has also failed to establish that he was denied a full and fair opportunity to litigate the issue in the Article 78 proceeding. In determining whether there was such an opportunity, the Court must consider, among other things, "the size of the claim in the prior proceeding, the forum of the prior proceeding, the extent of the prior litigation, and the availability of evidence now that was not available at the time of the prior proceeding." Id. at 202.

  These factors do not favor a finding that Plaintiff was deprived of a full and fair opportunity to litigate whether the Trustees' acted in an arbitrary and capricious manner. Plaintiff was represented by counsel in the Article 78 proceeding, and as noted in Moccio, an Article 78 petitioner can submit affidavits and other written proof as well as obtain a trial if issues of fact are raised. See id. (citing N.Y.C.P.L.R. 7804(d), (h)). Plaintiff does not point to any new evidence not available during the Article 78 proceeding. Indeed, Plaintiff alleges that the Trustees ignored the evidence before them, which he again raises in support of his argument that he is entitled to accidental disability benefits.*fn5

  Thus, just as in Moccio, the same issue decided in Plaintiff's Article 78 proceeding is the issue he seeks to raise here. See id. at 201. Because this issue was necessarily and actually decided in the Article 78 proceeding, which provided Plaintiff a full and fair opportunity to litigate it, the issue is precluded under New York principles of collateral estoppel. Therefore, Rooker-Feldman deprives this Court of subject matter jurisdiction over Plaintiff's claims against the Trustees, the Fire Department, and the City.

  Plaintiff's claims against the Corporation Counsel attorneys, however, do not necessarily rise and fall with the issue actually decided against him in the Article 78 proceeding. Instead, Plaintiff alleges that the City attorneys violated his right to due process under the color of state law by suppressing documentary evidence during their representation of the Trustees, the Fire Department, and the City in opposing Plaintiff's Article 78 petition. Plaintiff alleges that the Office of Corporation Counsel attorneys "maliciously charged, ignored, and suppressed" accident and medical reports that would prove his disability was caused or aggravated by his line-of-duty injuries. (Complaint at 1.) While these claims might not be barred by Rooker-Feldman, the Corporation Counsel attorneys are shielded from suit by official immunity.

  C. Claims Against Corporation Counsel Attorneys

  City attorneys acting in their official capacity in defense of civil suits are afforded absolute immunity against § 1983 actions seeking damages. See Spear v. Town of W. Hartford, 954 F.2d 63, 66 (2d Cir. 1992); Barrett v. United States, 798 F.2d 565, 572-73 (2d Cir. 1986). The Corporation Counsel attorneys here were engaged in the defense of their clients during a civil suit that Plaintiff initiated. Whether they engaged in "questionable or harmful conduct during the course of [the] representation . . . is irrelevant. The immunity attaches to [a government attorney's] function, not to the manner in which he performed it." Barrett, 798 F.2d at 573. Here, the City attorneys are accused of acting improperly during their legal defense of the City and its agencies, that is, in their role as advocates for the City. Absolute immunity thus bars suit for damages against them personally.

  The remedies Plaintiff seeks against the City attorneys are criminal prosecution and disbarment. This federal Court, however, does not have the power to do either. Criminal prosecution is an executive not judicial power, see United States v. Armstrong, 517 U.S. 456, 465 (1996); United States v. Mitchell, 358 F.3d 216, 219 (2d Cir. 2004); and, while the regulation of lawyers is in many instances a responsibility of the judiciary, it is a matter traditionally within the province of the states and not the federal government, see Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 434 (1982); Goldfarb v. Virginia State Bar, 421 U.S. 773, 792-93 (1975). As the Court has construed Plaintiff's pro se action as one arising under § 1983, it will also construe the relief sought as those available under that statute — civil damages and equitable relief. See Day v. Morgenthau, 909 F.2d 75, 77 (2d Cir. 1990). Plaintiff cannot obtain the former against government attorneys who were defending a civil suit, and has no standing to seek the latter because he has not alleged that he is likely to be subjected in the future to the same type of conduct of which he complains, see Los Angeles v. Lyons, 461 U.S. 95, 105 (1983). Therefore, Plaintiff's claims against the Corporation Counsel attorneys also fail.*fn6 III. CONCLUSION

  For the foregoing reasons, Defendants' motions for summary judgment are GRANTED. The Clerk of the Court is directed to close this case and enter judgment for Defendants.

  So Ordered.

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