Benjamin v New York City Dept. of Health

Benjamin v New York City Dept. of Health 2008 NY Slip Op 10192 [57 AD3d 403] December 30, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 11, 2009

Sislyn Benjamin, Appellant,
v
New York City Department of Health, Respondent.

—[*1] Noah A. Kinigstein, New York, for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Elizabeth I. Freedman of counsel), for respondent.

Order, Supreme Court, New York County (Judith J. Gische, J.), entered October 29, 2007, which, in an action for employment discrimination based on national origin and a shoulder injury disability, and a retaliatory firing, granted defendant's motion to dismiss the complaint, unanimously affirmed, without costs.

The action is precluded by plaintiff's prior filing with the New York City Commission on Human Rights (Executive Law § 297 [9]; Administrative Code of City of NY § 8-502 [a]). The Commission conducted an investigation and determined that there was no discrimination based on skin color, stress, gastric disorders or a peptic ulcer, and that the disciplinary action taken against plaintiff was based on substandard job performance. Although plaintiff's Commission filing did not claim, as plaintiff does here, discrimination based on national origin and a shoulder injury, the instant claims are based on the same continuing allegedly discriminatory underlying conduct asserted in the Commission proceedings, and thus the statutory election of remedies applies (see Bhagalia v State of New York, 228 AD2d 882, 883 [1996]). Similarly, while plaintiff contends that she did not and could not have asserted a retaliatory firing claim before the Commission because she was not fired until after she had filed her complaint with the Commission, the Commission did investigate her claims of retaliatory discipline and found them without merit. The retaliatory firing alleged herein was simply the culmination of the disciplinary process that the Commission found to have been based on substandard work performance (see Spoon v American Agriculturalist, 103 AD2d 929 [1984]). Moreover, a prior state court action containing the same claims as those herein was discontinued with prejudice by stipulation of the parties. There being nothing ambiguous about the stipulation, matters extrinsic to it may not be considered (see Aivaliotis v Continental Broker-Dealer Corp., 30 AD3d 446, 447 [2006]), and its res judicata effect is the same as a judgment on the merits (see Fifty CPW Tenants Corp. v Epstein, 16 AD3d 292 [2005]). Accordingly, to the extent plaintiff's claims are not barred by the Commission filing, they were waived under the stipulation. Concur—Lippman, P.J., Gonzalez, Nardelli, Buckley and Acosta, JJ. [See 17 Misc 3d 1122(A), 2007 NY Slip Op 52118(U).]