New York Supreme and/or Appellate Courts Appellate Division, First Department
January 3, 2012
JOSEPH SWEENEY, PLAINTIFF-RESPONDENT,
NEW YORK CITY DEPARTMENT OF HEALTH AND MENTAL HYGIENE,
Sweeney v New York City Dept. of Health & Mental Hygiene
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.
Decided on January 3, 2012
Gonzalez, P.J., Andrias, DeGrasse, Richter, Abdus-Salaam, JJ.
Order, Supreme Court, New York County (Jane S. Solomon, J.), entered September 27, 2010, which denied defendant's motion to dismiss the complaint as barred by the doctrines of collateral estoppel and res judicata, unanimously reversed, on the law, without costs, and the motion granted to the extent of dismissing the action on res judicata grounds. The Clerk is directed to enter judgment dismissing the complaint.
This action is barred by the doctrine of res judicata. Plaintiff's fraud claim, based upon the same harm and arising out of the same facts presented in a prior article 78 proceeding, could and should have been asserted in the prior proceeding (see generally Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 347-348 ; Brooklyn Welding Corp. v City of New York, 198 AD2d 189 , lv dismissed 83 NY2d 795 ). Further, the relief sought in this action (i.e., lost civil servant benefits) could have been claimed and awarded in the article 78 proceeding as "incidental to the primary relief sought" (CPLR 7806; see Pauk v Board of Trustees of City Univ. of N.Y., 68 NY2d 702, 704-705 ; Parker, 93 NY2d at 348).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 3, 2012
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