Matter of Finkel v New York City Hous. Auth.

Matter of Finkel v New York City Hous. Auth. 2011 NY Slip Op 07914 Decided on November 10, 2011 Appellate Division, First Department 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 November 10, 2011
Tom, J.P., Andrias, Acosta, Freedman, Richter, JJ.
5963 108091/10

[*1]In re Leonard Finkel, Petitioner-Appellant,

v

New York City Housing Authority, Respondent-Respondent, New York State Division of Human Rights, Respondent.




The Rosenthal Law Firm, PC, New York (Douglas Rosenthal of
counsel), for appellant.
Sonya M. Kaloyanides, New York (Mindy Merdinger
Blackstock of counsel), for respondent.

Judgment, Supreme Court, New York County (Barbara Jaffe, J.), entered November 4, 2010, dismissing this article 78 proceeding to annul respondent New York State Division of Human Rights' determination, dated April 23, 2010, which dismissed petitioner's complaint for lack of jurisdiction, unanimously affirmed, without costs.

The court correctly determined that the complaint filed with respondent New York State Division of Human Rights in 2010 was barred under the doctrine of res judicata because the complaints filed by petitioner in federal court in 1990 and 1991 were based on the same transaction as the 2010 petition, and were dismissed on the merits (see Zito v Fischbein Badillo Wagner Harding, 80 AD3d 520, 521 [2011]; Bettis v Kelly, 68 AD3d 578, 579 [2009]). Moreover, the 2010 complaint fails to allege any additional damages that were separate and distinct from those generated by respondent New York City Housing Authority's misconduct in 1988 (see Lusk v Weinstein, 85 AD3d 445, 446 [2011], lv denied 17 NY3d 709 [2011]).

Contrary to petitioner's contention, the Lilly Ledbetter Fair Pay Act of 2009 (the Fair Pay Act) does not apply to payments made pursuant to a pension structure because the language of the statute itself provides that "[n]othing in this Act is intended to change current law treatment of when pension distributions are considered paid" (Pub L 111-2, § 2[4] [2009]). Instead, " [t]he [Fair Pay] Act preserves the existing law concerning when a discriminatory pension distribution or payment occurs, i.e., upon retirement, not upon the issuance of each check'" (Zimmelman v Teachers' Retirement Sys., 2010 US Dist LEXIS 29791, *30, 2010 WL 1172769, *10 [SD NY 2010], quoting Tomlinson v El Paso Corp., 2009 US Dist LEXIS 77341, *9, 2009 WL 2766718, *3 [D Colo 2009]; see Sullivan v City of New York, 2011 US Dist LEXIS 36383, *8-10, [SD NY 2011]). Since petitioner began receiving retirement
compensation in 1996, the Fair Pay Act does not "reset" the statute of limitations for the claims related to failure to pay back wages ordered in a prior action, or any of the other claims. THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. [*2]

ENTERED: NOVEMBER 10, 2011

CLERK