O'Dette v. New York State Unified Court System, No. 1:2012cv02680 - Document 55 (E.D.N.Y. 2014)
Court Description: ORDER granting 44 Motion for Summary Judgment. Ordered by Judge I. Leo Glasser on 11/21/2014. (Russell, Alexandra)
Download PDF
<![CDATA[
O&#039;Dette v. New York State Unified Court System Doc. 55 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------------------------x MICHAEL O’DETTE, MEMORANDUM AND ORDER Plaintiff, 12 Civ. 2680 (ILG) (SMG) - against FERN A. FISHER, in her capacity as Deputy Chief Adm inistrative J udge for the New York City Courts, Defendant. ------------------------------------------------------x GLASSER, Senior United States District J udge: Plaintiff Michael O’Dette (“O’Dette”) brings this action against the Honorable Fern A. Fisher (“J udge Fisher” or “Defendant”), in her capacity as Deputy Chief Adm inistrative J udge for the New York City Courts, alleging violations of Title I of the Am ericans with Disabilities Act (“ADA”), 42 U.S.C. § 12111, et seq. J udge Fisher m oves, pursuant to Federal Rule of Civil Procedure 56, for sum m ary judgm ent. For the reasons that follow, the m otion is GRANTED. BACKGROU N D The following facts are undisputed, except where noted. O’Dette is a fifty-six-year-old m an who suffers from Obsessive Com pulsive Disorder (“OCD”) and Tourette’s Syndrom e (“Tourette’s”), a neurological disorder characterized by involuntary m otor and vocal tics. See Defendant’s Local Rule 56.1 Statem ent of Facts (“D SOF”) ¶ 22 1; Am . Com pl. (Dkt. No. 13) ¶ 26. He testified that as a result of his Tourette’s, he has the uncontrollable urge to release m otor and vocal tics hundreds of 1 Although J udge Fisher “assum e[s] that O’Dette has Tourette Syndrom e” for purposes of this m otion, she nevertheless notes that “it is far from clear that O’Dette has Tourette Syndrom e” and that “[O’Dette] has given conflicting accounts of his sym ptom s. . . .” See Defendant’s Mem orandum in Support of Motion for Sum m ary J udgm ent (“Mem orandum ”) at 2. 1 Dockets.Justia.com tim es a day for five to ten m inutes at a tim e. D SOF ¶ 24. When ticcing, he opens and closes his jaw, shrugs his shoulders, waves his hands, jerks his legs, and m akes “choo choo” sounds. Id. His verbal tics also “on infrequent occasions” include repeating obscenities—a sym ptom associated with Tourette’s known as coprolalia. See O’Dette Certification (PX 2) ¶ 5; O’Dette Testim ony (PX A) at 80 :11-16. He testified that his Tourette’s and OCD do not interfere with his ability to sleep, m ake decisions, think, or work. D SOF ¶ 37. Additionally, his expert, Dr. Stephen Reich, opined that his sym ptom ology has never prevented him from “working, being productive, and being independent.” Id. ¶ 39. I. O’D e tte ’s Em p lo ym e n t at th e N e w Yo rk U n ifie d Co u rt Sys te m From 20 0 0 through 20 0 9, O’Dette worked as a New York State Court Officer (“Court Officer”), providing courthouse security services for the New York Unified Court System (“UCS”). His official responsibilities as a Court Officer included providing courtroom security, patrolling the courthouse, m aintaining order and control in em ergencies, and guarding judicial staff. D SOF ¶¶ 28, 30 . From March 20 0 0 through October 20 0 1, he was assigned to the Bronx Fam ily Court. Id. ¶ 3. On Novem ber 1, 20 0 1, he becam e a Senior Court Officer for the Civil Term of the New York County Suprem e Court, where he was assigned primarily to the 60 Centre Street courthouse (“60 Centre Street”) and tem porarily to the 71 Thom as Street courthouse (“71 Thom as Street”). Id. ¶ 3. At 60 Centre Street, he worked at the X-ray m achines and m agnetom eters (collectively, the “m agnetom eters”), located at the front and back entrances. Id. ¶ 7. He used em pty jury room s, bathroom s, courtroom s, and judge’s robing room s to release his tics. Id. ¶ 27. On April 2, 20 0 9, his supervisor, Major Gerard Fennell, told him that he 2 was being transferred to 71 Thom as Street, which he knew did not have private areas for him to release his tics. Id. ¶ 4. The next day, in a m eeting with Chief Clerk J ohn Werner and Captain Michael Castellano, he disclosed that he had Tourette’s and needed a private place to release his tics; this was the first tim e he shared this inform ation with anyone at the UCS. Id. ¶ 5. His supervisors perm itted him to rem ain assigned to 60 Centre Street. Id. ¶ 6. II. In s tan ce s o f Mis co n d u ct A few m onths later, he was involved in two episodes in which he loudly cursed in public at another Court Officer while on the job. On J uly 8, 20 0 9, he scream ed “fuck you” repeatedly at Officer Kim berly Moses in the public courthouse lobby after she refused to relieve him as a pusher on the m agnetom eters and allegedly called him a “retard.” D SOF ¶¶ 7-10 . On Novem ber 5, 20 0 9, he refused Lieutenant Kenneth Schustal’s order to relieve another Court Officer at the m agnetom eters because he believed he was still on his lunch break. Id. ¶¶ 11-15. He scream ed “fuck you” repeatedly at Schustal over the phone in the public lobby, and again in a m eeting with his supervisors. Id. He alleges that because he has coprolalia, he could not control either cursing incident. Plaintiff’s Local Rule 56.1 Statem ent of Facts (“P SOF”) ¶¶ 8, 10 , 13, 15. As a result of these incidents, on Novem ber 5, 20 0 9, he was placed on paid adm inistrative leave. D SOF ¶16. He reported back to work on Decem ber 2, 20 0 9. Id. ¶ 17. His supervisors assigned him to 71 Thom as Street, in hopes of giving him a “fresh start” in a quieter, less stressful work environm ent than at 60 Centre Street. Id. ¶¶ 18-19. On the day he returned to work, he told Sergeant Terence McNulty—one of his superior officers at 60 Centre Street—that he needed a private room at 71 Thom as Street to release his tics. P SOF ¶ 21; DX 13 at 10 9:15-110 :11. McNulty arranged for a m eeting 3 that day with Castellano, who advised O’Dette that he needed to request this accom m odation from his superior officers at 71 Thom as Street. D SOF ¶ 20 ; DX 13 at 10 9:15-110 :11; DX 41 at 24:22-25. He told Castellano that he “wasn’t going to go over [to 71 Thom as Street]” and Castellano told him to go hom e. DX 13 at 110 :8-13. On December 14, 20 0 9, he subm itted form s com pleted by his psychiatrist, Dr. Ruth Dowling-Bruun, to assist the UCS in evaluating whether he was capable of returning to work. D SOF ¶ 48. In one of the form s, Bruun stated that there were no known problem s that would interfere with him returning to work so long as he had access to a separate room to release his tics. See id. ¶ 49. That sam e day, Fennell notified O’Dette in writing that he could not return to work. Am . Com pl. ¶ 52. On Septem ber 14, 20 10 , the UCS filed disciplinary charges against him based on the J uly 8, Novem ber 5, and Decem ber 2, 20 0 9 incidents of alleged m isconduct. DX 1-2. III. D is cip lin ary H e arin g On December 12 and 13, 20 11, the State of New York Office of Court Adm inistration held a two-day disciplinary hearing before J udicial Hearing Officer (“J HO”) Herbert J . Adlerberg. J HO Adlerberg issued a Report and Recom m endation (“R&R”), dated February 6, 20 12, which found that O’Dette had com m itted m isconduct on all three occasions. DX 2. In particular, he found that the first two instances of m isconduct—in which O’Dette cursed at a fellow Court Officer and his supervisor—were only partially attributable to Tourette’s or OCD, and that O’Dette’s direct refusal of Schustal’s order to report to 71 Thom as Street was not attributable to O’Dette’s alleged disabilities. DX 2 at 12. He reasoned that “the m ost im portant rule” governing the Court Officer position was to operate within a chain of com m and and that O’Dette’s “intentional and steadfast refusal to report to the assignm ent at 71 Thom as Street . . . 4 [was] a blatant violation of that rule and can in no way be attributed to an uncontrollable tic.” Id. at 13. He recom m ended that O’Dette’s em ploym ent as a Senior Court Officer be term inated. Id. On March 6, 20 12, J udge Fisher issued a Directive concurring with the R&R’s findings and term inating O’Dette’s em ploym ent. See DX 3. IV. Fe d e ral an d State Pro ce e d in gs On February 29, 20 12, the Equal Em ploym ent Opportunity Com m ission (“EEOC”) issued O’Dette a right to sue letter in response to his EEOC com plaint dated February 1, 20 10 . Am . Com pl. ¶¶ 11-12. On May 29, 20 12, he filed the initial Com plaint in this action against the UCS alleging violations of Titles I and II of the ADA for wrongful term ination and failure to accom m odate, and seeking dam ages, a declaratory judgm ent, and a prospective injunction requiring the UCS to reinstate him as a court officer. Dkt. No. 1. On J uly 3, 20 12, O’Dette filed a petition challenging his term ination with the Suprem e Court of the State of New York, pursuant to Article 78 of the Civil Practice Law and Rules. See DX 4. In his petition, he argued that (1) the R&R’s findings and recom m endations, with which J udge Fisher concurred, were not supported by substantial evidence; and (2) “the punishm ent of term ination was disproportionate to the offenses.” See id. ¶¶ 58-63. His petition requested an order annulling the UCS’ determ inations and reinstating him to his position as a Senior Court Officer, along with back pay and benefits. Id. at 7. Because the New York Suprem e Court did not have jurisdiction over his Article 78 proceeding, it transferred the case to the New York 5 Appellate Division, First Departm ent, on J uly 9, 20 12. See DX 5 at 66; CPLR § 780 4(g) 2 . On J uly 17, 20 12, the UCS m oved this Court to dism iss O’Dette’s Com plaint. Dkt. No. 6. On April 15, 20 13, this Court dismissed the Com plaint on Eleventh Am endm ent sovereign im m unity grounds, but under the Ex Parte Young doctrine, it granted O’Dette leave to am end his com plaint and replead his Title I claim to pursue injunctive relief against a responsible state official. Dkt No. 12. O’Dette filed his Am ended Com plaint on May 11, 20 13, seeking only injunctive relief against J udge Fisher in her official capacity. Dkt. No. 13. His Am ended Com plaint alleges a single count under Title I of the ADA for wrongful term ination and failure to accom m odate his alleged disability, and seeks an injunction requiring J udge Fisher to reinstate him as a Senior Court Officer. See id. On May 30 , 20 13, the Appellate Division heard oral argum ent in the Article 78 proceeding, during which one justice asked the UCS’ attorney, Shawn Kirby, what effect the Appellate Division’s decision would have on O’Dette’s pending federal action. DX 39 ¶ 12; Certification of Ronald D. Degen (“Degen Cert.”) (PX 1) ¶ 6; Reply Declaration of Shawn Kirby, Esq. (“Kirby Decl.”) ¶ 10 .34 According to O’Dette, Kirby responded that the court’s decision would not affect the federal action and that the two cases were independent of one another. See Degen Cert. ¶ 6. J udge Fisher asserts that although the court noted that O’Dette had a pending federal case, the oral argum ent concerned 2 Under CPLR § 780 4(g), all Article 78 proceedings alleging that an adm inistrative decision was not supported by “substantial evidence” m ust be tran sferred to the Appellate Division: “Where [the substantial evidence] issue is raised, the court [in which the proceeding is com menced] shall first dispose of such other objections as could term inate the proceeding . . ., without reaching the substantial evidence issue. If the determ ination of the other objections does not term inate the proceeding, the court shall m ake an order directed that it be transferred for disposition to a term of the appellate division. . . .” 3 The UCS’ response to O’Dette’s Article 78 petition included a copy of this Court’s April 15, 20 13 decision “for the sake of a com plete procedural record.” Kirby Decl. ¶¶ 8-9. 4 The parties disagree as to what transpired during oral argum ent, and a transcript of the proceeding is unavailable. See Degen Cert; Kirby Decl. 6 solely whether “substantial evidence” supported his culpability and whether the term ination penalty was “im perm issibly shocking.” See Kirby Decl. ¶ 12. On J une 20 , 20 13, the Appellate Division denied his petition and dism issed the proceeding after finding that “substantial evidence” supported the UCS’ determ ination that he had engaged in m isconduct, and that term ination was not an inappropriate penalty. DX 5 at 66. His m otion for reargum ent was denied, and on October 15, 20 13, the New York Court of Appeals denied his m otion for leave to appeal. DX at 6-7. V. Su m m ary Ju d gm e n t Mo tio n On August 15, 20 14, J udge Fisher filed her Motion for Sum m ary J udgm ent and supporting m em orandum (“Mem orandum ”). Dkt. No. 44. Her m otion asserts that (1) the doctrine of res judicata bars O’Dette’s ADA claim ; and (2) he cannot otherwise establish a genuine dispute of m aterial fact to support the claim . See id. On Septem ber 15, 20 14, O’Dette filed his Opposition to J udge Fisher’s Motion for Sum m ary J udgm ent (“Opposition”). Dkt. No. 49. J udge Fisher filed her Reply in Support of her Motion for Sum m ary J udgm ent (“Reply”) on October 8, 20 14. Dkt. No. 50 . LEGAL STAN D ARD Sum m ary judgm ent is appropriate “if the m ovant shows that there is no genuine dispute as to any m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.” Fed. R. Civ. P. 56(a). “An issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonm oving party. . . . A fact is m aterial if it m ight affect the outcom e of the suit under the governing law.” Fincher v. Depository Trust & Clearing Corp., 60 4 F.3d 712, 720 (2d Cir. 20 10 ) (internal quotations and citations om itted). The m oving party bears the burden of establishing the absence of any genuine issue of m aterial fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A 7 court deciding a m otion for sum m ary judgm ent m ust “construe the facts in the light m ost favorable to the nonm oving party and m ust resolve all am biguities and draw all reasonable inferences against the m ovant.” Brod v. Om ya, Inc., 653 F.3d 156, 164 (2d Cir. 20 11) (quotation om itted). D ISCU SSION J udge Fisher first argues that sum m ary judgm ent is proper because res judicata bars O’Dette’s ADA claim . In response, O’Dette argues that the equitable doctrine of judicial estoppel precludes this defense. The Court addresses each of these issues in turn. I. R e s Ju d ica t a J udge Fisher argues that the doctrine of res judicata, or claim preclusion, bars O’Dette’s ADA claim because it arises from the sam e facts as his Article 78 petition and could have been brought in New York State court. To establish res judicata, a party m ust show that “(1) the previous action involved an adjudication on the m erits; (2) the previous action involved the [sam e parties] as the subsequent action or those in privity with them ; [and] (3) the claim s asserted in the subsequent action were, or could have been raised, in the prior action.” Monahan v. N.Y.C. Dep’t of Corr., 214 F.3d 275, 285 (2d Cir. 20 0 0 ) (internal citations om itted). The Full Faith and Credit Clause, U.S. Const., Art. IV, § 1, requires a federal court to “give to a state-court judgm ent the sam e preclusive effect as would be given that judgm ent under the law of the State in which the judgm ent was rendered.” Migra v. Warren City Sch. Dist., 465 U.S. 75, 80 -81 (1984). Under New York’s “transactional approach” to res judicata analysis, “once a claim is brought to a final conclusion, all other claim s arising out of the sam e transaction or series of transactions are barred, 8 even if based upon different theories or if seeking a different rem edy.” Giannone v. York Tape & Label, Inc., 548 F.3d 191, 194 (2d Cir. 20 0 8). “[A] set of facts will be deem ed a single ‘transaction’ for res judicata purposes if the facts are closely related in tim e, space, m otivation, or origin, such that treating them as a unit would be convenient for trial and would conform to the parties’ expectations.” Harris v. Beth Israel Med. Ctr., No. 0 8-CIV-110 29, 20 0 9 WL 612498, at *7 (S.D.N.Y. Mar. 4, 20 0 9) aff’d, 367 F. App’x 184 (2d Cir. 20 10 ). The first two elem ents of res judicata are clearly satisfied here: the Article 78 proceeding was adjudicated on the m erits and involved the sam e parties as this action. See DX 4-5. Thus, the only question is whether the ADA claim “could have been raised” in the Article 78 proceeding. The Second Circuit has recognized that the “could have been” language in the third elem ent of res judicata is “som ething of a m isnom er.” Pike v. Freem an, 266 F.3d 78, 91 (2d Cir. 20 0 1). Indeed, “the question is not whether the applicable procedural rules perm itted assertion of the claim in the first proceeding; rather, the question is whether the claim was sufficiently related to the claim s that were asserted in the first proceeding that it should have been asserted in that proceeding.” Id. However, “showing that the applicable procedural rules did not perm it assertion of the claim in question in the first action . . . suffices to show that the claim is not barred in the second action.” Id. J udge Fisher argues that this federal action “arises out of the sam e ‘transactions or series of transactions’ as the Article 78 proceeding that O’Dette lost in the New York State courts.” Mem orandum at 8. She correctly notes that the crux of both federal and state actions is O’Dette’s assertion that he was unlawfully term inated and should be 9 reinstated. Indeed, an identical set of underlying facts gave rise to his ADA claim and Article 78 challenge: (1) his cursing at Officer Moses in J uly 20 0 9; (2) his cursing at Lieutenant Schustal in Novem ber 20 0 9; (3) his refusal to report to his new assignm ent at 71 Thom as Street on Decem ber 2, 20 0 9; (4) his unsuccessful request for an accom m odation to allow him to release his tics; and (5) J udge Fisher’s order affirm ing J HO Adlerberg’s decision term inating his em ploym ent. Com pare Article 78 Petition (DX 4) ¶¶ 53-58, with Am . Com pl. ¶¶ 44-53; 63-66. Indeed, his ADA cause of action “requires the sam e evidence to support it and is based on facts that were also present in the [Article 78 proceeding],” and therefore, under New York’s “transactional” test, the claim s arise from the sam e factual transaction, and both should have been asserted in the prior proceeding. See Maharaj v. Bankam erica Corp., 128 F.3d 94, 97 (2d Cir. 1997). O’Dette argues that his Article 78 petition was autom atically transferred to the New York Appellate Division, which is not a trial court and therefore could not have considered his ADA claim .5 Yet the applicable procedural rules did not prohibit him from bringing an ADA claim along with his Article 78 challenge—petitioners m ay bring a com bined Article 78 petition and civil action in New York State courts, which have concurrent jurisdiction over ADA claim s. See Harris, 20 0 9 WL 612498, at *9-10 (res judicata barred ADA claim because plaintiff could have raised it in New York Suprem e Court); Meadows v. Robert Flem ings, Inc., 290 A.D.2d 386, 387 (1st Dep’t 20 0 2) (New York State courts have concurrent jurisdiction over ADA claim s); Tyson v. New York State Dep’t of Correctional Servs., 198 A.D.2d 40 8, 40 8, 60 4 (2d Dep’t 1993) (hybrid Article 78 com plaint alleged disability discrim ination and sought an order appointing 5 His additional argum ent—that he could not have raised the ADA claim during the disciplinary proceeding—is irrelevant because J udge Fisher’s res judicata argum ent is based on the prior New York State court litigation, not the disciplinary proceeding. 10 petitioner as correction officer). Had he brought a “hybrid” com plaint asserting both his Article 78 and ADA causes of action, the New York Suprem e Court would have been required to resolve the ADA claim before transferring the Article 78 proceeding to the Appellate Division. See CPLR § 780 4(g); see also Sanon v. Wing, No. 40 3296/ 98, 20 0 0 WL 517782, at *1 (N.Y. Sup. Ct. Feb. 25, 20 0 0 ) (Suprem e Court m ust address ADA issue in hybrid Article 78 proceeding before transferring “substantial evidence” question to Appellate Division). O’Dette also argues that res judicata is inapplicable because the relief he seeks in this action was unavailable in state court. See Opposition at 22. His argum ent is without m erit because the injunctive relief he seeks in this action—reinstatem ent of his em ploym ent as a Court Officer—is identical to the relief sought in his state court proceeding. See Am . Com pl. at 12, ¶ A; DX 4 ¶ 2. O’Dette even concedes that as a m atter of law, he cannot obtain dam ages in this action. DX 39 ¶ 18. J udge Fisher has established that O’Dette could have brought his ADA claim in the previous state lawsuit, which involved the sam e parties and was adjudicated on the m erits. Therefore, res judicata bars his ADA claim . II. Ju d icial Es to p p e l O’Dette argues that during the Article 78 proceeding, the UCS represented that res judicata would not bar his ADA cause of action, and therefore J udge Fisher should be judicially estopped from asserting this defense now. See Opposition at 25. The equitable doctrine of judicial estoppel “prevents a party who secured a judgm ent in his favor by virtue of assum ing a given position in a prior legal proceeding from assum ing an inconsistent position in a later action.” Maharaj, 128 F.3d at 98 (2d Cir. 1997). J udicial estoppel is designed to protect “the sanctity of the oath and the integrity of the 11 judicial process,” rather than ensuring fairness between litigants. Seneca Nation of Indians v. New York, 26 F. Supp. 2d 555, 565 (W.D.N.Y. 1998). “A party invoking judicial estoppel m ust show that: (1) his adversary advanced an inconsistent factual position in a prior proceeding, and (2) the prior inconsistent position was adopted by the first court in som e m anner.” Wight v. BankAm erica Corp., 219 F.3d 79, 90 (2d Cir. 20 0 0 ). Moreover, the Second Circuit “further lim it[s] judicial estoppel to situations where the risk of inconsistent results with its im pact on judicial integrity is certain.” DeRosa v. Nat’l Envelope Corp., 595 F.3d 99, 10 3 (2d Cir. 20 10 ) (internal citations om itted). O’Dette has not established that judicial estoppel is appropriate here. First, J udge Fisher’s position in this action is not inconsistent with the position that the UCS advanced in the state proceeding. J udicial estoppel is lim ited to situations where there is a “direct and irreconcilable contradiction between the earlier and later statem ents.” Markus v. Teachers Ins. & Annuity Ass’n Coll. Ret. Equities Fund, No. 0 3 Civ. 646, 20 0 5 WL 742635, at *4 (S.D.N.Y. Mar. 29, 20 0 5). Furtherm ore, in the Second Circuit, judicial estoppel applies exclusively to inconsistent factual positions. See, e.g., Seneca Nation, 26 F. Supp. 2d at 565 (finding “no legal authority” to extend the doctrine of judicial estoppel to inconsistent legal positions). Fisher’s current position—that res judicata bars O’Dette’s ADA claim —is not directly or irreconcilably contradicted by Kirby’s alleged statem ent that the Appellate Division’s decision regarding his Article 78 petition would have no effect on this action. The Article 78 proceeding addressed two issues: (1) whether “substantial evidence” supported the UCS’ findings of m isconduct; and (2) whether the penalty of term ination was “so disproportionate as to be shocking to one’s sense of fairness.” See DX 6. Thus, 12 in determ ining whether to grant the relief O’Dette requested in his Article 78 petition, the Appellate Division had no reason to evaluate the potential application of res judicata in this federal action. Furtherm ore, even if Kirby’s statem ent did concern the validity of res judicata in this action, judicial estoppel would still be inapplicable to such an inconsistent legal position. See Mulvaney Mech., Inc. v. Sheet Metal Workers Int’l Ass’n, Local 38, 288 F.3d 491, 50 4 (2d Cir. 20 0 2) (wavering positions regarding the ram ifications of a strike upon a collective bargaining agreem ent were legal conclusions, not “inconsistent factual positions” that could otherwise justify judicial estoppel); rev’d on other grounds, 351 F.3d 43 (2d Cir. 20 0 3) (per curiam ). Second, there is no evidence that the Appellate Division “adopted” Kirby’s statem ent. J udicial estoppel is appropriate “only if the party against whom estoppel is claim ed actually obtained a judgm ent as a result of the inconsistent position.” Merrill Lynch, Pierce, Fenner & Sm ith, Inc. v. Georgiadis, 90 3 F.2d 10 9, 114 (2d Cir. 1990 ). The party claim ing estoppel has the burden of showing that the first court actually adopted the earlier representation. See e.g., Soroof Trading Dev. Co., Ltd. v. GE Microgen, Inc., No. 10 Civ. 1391, 20 14 WL 1378115, at *5 (S.D.N.Y. Apr. 8, 20 14). O’Dette has not m et this burden. He m erely speculates that “. . . had Defendant’s counsel answered that this action would be barred by the Article 78 proceeding, the state court m ight have decided the case differently.” Opposition at 23-24. Yet beyond this conjecture, he can point to nothing in the Appellate Division’s order to suggest that the court even considered, m uch less adopted, Kirby’s statem ent in deciding to dism iss his Article 78 petition. See U.S. Dep’t. of Hous. & Urban Dev. v. K. Capolino Const. Corp., No. 0 1 Civ. 390 , 20 0 1 WL 487436, at *7 (S.D.N.Y. May 7, 20 0 1) (defendants failed to show that court adopted 13 plaintiff’s position where “nothing in the decision” indicated the court adopted the representation). Finally, the “risk of inconsistent results with its im pact on judicial integrity” is far from certain here. See Treadwell, 58 F. Supp. 2d at 93. Res judicata was not at issue in the earlier proceeding, and therefore Kirby’s statem ent created no risk of inconsistent results as to the application of res judicata in this action. O’Dette has not shown that judicial estoppel is applicable, and the Court will not exercise its equitable power to preclude J udge Fisher from asserting res judicata as a defense.6 CON CLU SION For the reasons discussed above, the Court grants J udge Fisher’s m otion for sum m ary judgm ent on res judicata grounds. The Clerk of Court is directed to enter judgm ent in favor of J udge Fisher, and to close this case. SO ORDERED. Dated: Brooklyn, New York Novem ber 21, 20 14 / s/ I. Leo Glasser Senior United States District J udge 6 J udge Fisher also argues that she is entitled to sum mary judgm ent because O’Dette cannot raise a genuine issue of m aterial fact to support his ADA cause of action. Because the Court has determ ined that res judicata bars this action, it need not consider her other asserted ground for sum m ary judgm ent. 14
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
