Matter of Hoover v County of Broome

[*1] Matter of Hoover v County of Broome 2009 NY Slip Op 51101(U) [23 Misc 3d 1134(A)] Decided on June 2, 2009 Supreme Court, Broome County Rumsey, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 2, 2009
Supreme Court, Broome County

In the Matter of the Application of Keith Hoover, Petitioner,

against

County of Broome, Michael Klein, as Personnel Director of Broome County, David E. Harder as Sheriff of Broome County, Respondents.



2008-1102



APPEARANCES:

ENNIO J. CORSI, GENERAL COUNSEL

NEW YORK STATE LAW ENFORCEMENT

OFFICERS UNION, DISTRICT COUNCIL 82,

AFSCME, AFL-CIO

By:Matthew P. Ryan, Associate General Counsel

Attorneys for Petitioner

63 Colvin Avenue

Albany, New York 12206

JOSEPH SLUZAR

BROOME COUNTY ATTORNEYBy: Robert G. Behnke, of counsel

Broome County Attorney's Office

Edwin L. Crawford County Office Building

P.O. Box 1766

Binghamton, New York 13902

Phillip R. Rumsey, J.

Petitioner commenced this CPLR article 78 proceeding seeking an order annulling respondents' determination to terminate his employment, and compelling reinstatement of his salary and employment benefits. Respondents move for dismissal, pursuant to CPLR 7804(f), on the basis that petitioner's claim is barred by the doctrines of res judicata or collateral estoppel.

In early 2007, petitioner commenced an action against respondents (and others) in the United States District Court for the Northern District of New York (prior action), claiming, in relevant part, that he had been constructively discharged from his position as corrections officer without due process of law. His suit was based on events which began in July 2005, when he reported two instances of alleged misconduct by fellow corrections officers — use of excessive force in removing an inmate from a fight with a second inmate, and destruction of some of the second inmate's property (Hoover v County of Broome, ___ F. Supp.2d ___, 2008 WL1777444 at *1 [NDNY 2008]). Petitioner contends that he was then subjected to retaliatory harassment which forced him to take a leave of absence from his position beginning on January 2, 2007 (id. at *2 and *7).

While the prior action was pending, respondent Harder advised petitioner, by letter dated January 7, 2008, that his employment with respondent County of Broome would be terminated, pursuant to Civil Service Law § 73, on January 8, 2008 (Petition, Exhibit A). On or about February 22, 2008, defendants in the prior action moved for summary judgment dismissing the complaint in its entirety (Affirmation of Matthew P. Ryan, Esq. [Ryan Affirmation], dated June 11, 2008, Exhibit D). Petitioner responded to the summary judgment motion on March 11, 2008 (id., Exhibits E and F), and his complaint was dismissed by decision and order dated April 16, 2008 (Hoover, 2008 WL1777444). This proceeding was commenced on April 30, 2008.

Respondents terminated petitioner's employment pursuant to Civil Rights Law § 73, which permits an employer to discharge an employee who "has been continuously absent from and unable to perform the duties of his position for one year or more by reason of a disability, other than a disability resulting from occupational injury or disease as defined in the workmen's compensation law" (Civil Service Law § 73). In this proceeding, petitioner contends that respondents' termination of his employment on January 8, 2008 violates his due process rights, because respondents failed to apprise him of his right to a pre-termination opportunity to be heard, and of his entitlement to a post-termination hearing to contest his dismissal. Respondents argue that this proceeding must be dismissed, on the grounds of res judicata or collateral estoppel, because petitioner's claim that they deprived him of due process in terminating his employment was litigated in the prior action.

The doctrine of res judicata, or claim preclusion, provides that a final judgment on the merits of an action precludes the parties from relitigating issues that were or could have been raised in that action (Matter of Hunter, 4 NY3d 260, 269 [2005]). Respondents argue that, in the prior action, petitioner "conceded that his termination did comply with due process" (Affidavit of Robert G. Behnke, sworn to June 5, 2008 [Behnke Affidavit], ¶ 2), and that "Judge McEvoy also held that Mr. Hoover conceded that his actual termination by the Sheriff did not deprive him of [*2]due process." (Memorandum of Law on Behalf of Respondents, dated June 5, 2008, p. 2).

The court finds no evidence that petitioner's claim that his due process rights were violated by respondents' termination of him on January 8, 2008 was either raised or litigated in the prior action. In the documents filed in the prior action that are part of the record in this proceeding, the only reference to petitioner's actual termination under Civil Rights Law § 73 is found in petitioner's affidavit in reply to respondents' summary judgment motion, in which he simply notes: "I have been unable to return to the job and, as a result of the same, I was terminated in January 2008 by the Sheriff, who claims that such termination is pursuant to policies, rules, or regulations." (Ryan Affirmation, Exhibit F). There is nothing in this limited statement that can be construed as a concession by petitioner that his actual termination by respondents complied with his due process rights. Nor did Judge McEvoy find that petitioner conceded the issue; he noted only that petitioner neglected to raise the point, by failing to "argue that he did not receive due process of law with respect to his actual termination by the Sheriff." (Hoover, 2008 WL1777444, at *7). The court dismissed petitioner's claim that respondents constructively discharged him without due process of law, stating that:

First, Plaintiff was not entitled to pre-deprivation notice and opportunity to be heard. It is difficult to conceive how, in the situation of a constructive discharge, the employer can know when an employee might resign and, thus, whether a hearing is required.

Id. (citations omitted). The court further found, based on a review of facts which all occurred prior to January 2, 2007 (id. at *2 and *7), that there was insufficient evidence to charge the employer with knowledge of the behavior which allegedly led to the constructive discharge.

No consideration was given in the prior action to the extent of respondents' obligation to provide petitioner with notice of his right to be heard prior to terminating him pursuant to Civil Rights Law § 73, or to whether the notice provided complied with such requirements (id.).

Thus, whether res judicata bars this proceeding turns on whether petitioner, in the prior action, should have raised claims arising from his actual termination in January 2008.

[A]s a matter of logic, when the second action concerns a transaction occurring after the commencement of the prior litigation, claim preclusion generally does not come into play. Accordingly, if, after the first suit is underway, a defendant engages in actionable conduct, plaintiff may — but is not required to — file a supplemental pleading setting forth defendant's subsequent conduct. Plaintiff's failure to supplement the pleadings of his already commenced lawsuit will not result in a res judicata bar when he alleges defendant's later conduct as a cause of action in a second suit. New York law is the same.

Maharaj v Bankamerica Corp., 128 F3d 94, 97 (2d Cir 1997)(emphasis supplied; citations omitted), quoting Matter of Cohen v. Board of Educ. of E. Ramapo Cent. School Dist., 84 AD2d 536, 537 (1981) (res judicata will not bar lawsuit "based upon events which occurred subsequent to the commencement of the prior proceeding"); see also Risley v Fordham Univ., 2001 WL118566, *5 (SDNY 2001) ("The doctrine of res judicata will not bar, however, claims based on any adverse employment actions that have occurred since the filing of the [prior] action.") [*3](emphasis supplied).[FN1] Because the claim petitioner seeks to raise in this proceeding is based upon conduct by respondents that occurred during the pendency of the prior action, it is not barred by the doctrine of res judicata.[FN2]

Collateral estoppel (issue preclusion) "precludes a party from relitigating in a subsequent action or proceeding an issue raised in a prior action or proceeding and decided against that party or those in privity." (Buechel v Bain, 97 NY2d 295, 303 [2001], cert denied 535 US 1096 [2002]). For the reasons noted above, petitioner's claim was not actually litigated in the prior action; therefore, it is not barred by the doctrine of collateral estoppel.

Respondents' motion is denied. The petition shall be heard at the court's motion term on July 2, 2009, at 9:30 a.m., at the Broome County Courthouse (see CPLR 7804[f]). Respondent's answer, if any, shall be filed and served on or before June 22, 2009, and petitioner's reply thereto, if any, shall be filed and served on or before June 29, 2009 (see CPLR 7804[c] and [f]).

This decision shall constitute the order of the court.

Dated:June 2, 2009

Cortland, New York

______________________________

HON. PHILLIP R. RUMSEY

Supreme Court Justice

ENTER Footnotes

Footnote 1: Only claims based on new actionable conduct by the other party during the pendency of the original action survive res judicata; all claims based on the original transaction — even if based on new evidence obtained after commencement of the first action — must be interposed in the original action, or they are barred by res judicata (see Kinsman v Turetsky, 21 AD3d 1246 [2005]; Koppelman v Liddle, O'Connor, Finkelstein & Robinson, 246 AD2d 365 [1998]).

Footnote 2: The court notes that petitioner commenced a previous CPLR article 78 proceeding on January 9, 2008 — 2 days after the date of the termination letter — in which he asked, in part, that the court declare the termination letter "null and void" (Broome County Index No. 2008-0046). In dismissing the petition, the court found that petitioner had failed to state a factual basis for his claim. A dismissal for failure to state a claim is not on the merits and does not bar subsequent proceedings; therefore, the prior CPLR article 78 proceeding does not bar the instant proceeding (Amsterdam Sav. Bank v Marine Midland Bank, 140 AD2d 781 [1988]; Matter of Averbach v Board of Assessors of Town of Delhi, 176 AD2d 1151 [1991]).