Bettis v Kelly

Bettis v Kelly 2009 NY Slip Op 09397 [68 AD3d 578] December 17, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 10, 2010

Frank Bettis, Appellant,
v
Raymond Kelly, as Police Commissioner of the New York City Police Department, et al., Respondents.

—[*1] Frank Bettis, appellant pro se.

Michael A. Cardozo, Corporation Counsel, New York (Cheryl Payer of counsel), for 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.

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