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Bettis v. Kelly

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


December 17, 2009

FRANK BETTIS, PLAINTIFF-APPELLANT,
v.
RAYMOND KELLY, AS POLICE COMMISSIONER OF THE NEW YORK CITY POLICE DEPARTMENT, ET AL., DEFENDANTS-RESPONDENTS.

Order, Supreme Court, New York County (Paul G. Feinman, J.), entered October 7, 2008, which, in this action alleging wrongful termination, granted defendants' motion to dismiss the complaint, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Tom, J.P., Andrias, Saxe, McGuire, Manzanet-Daniels, JJ.

112234/07

Given plaintiff's admission that he was aware of defendants' alleged fraud in January 2002, this action, commenced in 2007, alleging claims that defendants violated his rights to equal protection and due process and that defendants violated section 75 of the Civil Service Law and section 14-115 of the Administrative Code of the City of New York, was properly dismissed as barred by the statute of limitations (see CPLR 213[8]). The action is also barred under the doctrine of res judicata because the instant action and the one plaintiff brought in federal court (see Bettis v Kelly, 2004 WL 1774252, 2004 US Dist LEXIS 15463 [SD NY 2004], affd 137 Fed Appx 381 [2d Cir 2005], cert denied 547 US 1004 [2006]; see also Bettis v Safir, 2000 WL 1336055, 2000 US Dist LEXIS 13285 [SD NY 2000]), are based on the same transaction, namely plaintiff's termination from the New York City Police Department in 1994, and his prior action was dismissed on the merits (see e.g. Heritage Realty Advisors, LLC v Mohegan Hill Dev., LLC, 58 AD3d 435, 436 [2009], lv denied 12 NY3d 830 [2009]).

We have considered plaintiff's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20091217

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