Brannon v Mills

Brannon v Mills 2011 NY Slip Op 08208 Decided on November 15, 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 15, 2011
Mazzarelli, J.P., Catterson, Moskowitz, Renwick, Abdus-Salaam, JJ.
6026N 112619/08

[*1]Ralph Brannon, No. Plaintiff-Appellant,

v

Maura McHugh Joseph Mills, et al., Defendants, Paul Schreiber, etc., et al., Defendants-Respondents.




Mayne Miller, Brooklyn, for appellant.
Michael A. Cardozo, Corporation Counsel, New York (Andrew
S. Wellin of counsel), for respondents.

Order, Supreme Court, New York County (Edward H. Lehner, J.), entered August 25, 2009, which granted the motion by defendants Paul Schreiber, the Department of Housing Preservation and Development of the City of New York (HPD), and the City of New York (the City defendants) to dismiss the complaint as against them, and denied plaintiff's motion for leave to amend the complaint, unanimously affirmed, without costs.

Plaintiff, an attorney employed by HPD, was charged by the agency with violating its Code of Conduct, based on allegations that after approaching another attorney in a hallway outside a courtroom and seeking unsuccessfully to settle a case he placed his hand on the attorney's arm and asked her for a kiss. After a hearing, the ALJ sustained the charges and recommended a 30-day suspension without pay. HPD adopted the findings and recommendations of the ALJ, and plaintiff appealed to the Civil Service Commission. While the appeal was pending, he commenced this action, alleging defamation and retaliatory employment action and, later, malicious prosecution. The Civil Service Commission affirmed HPD's determination.

Plaintiff's complaint is premised on his denial of culpability for the conduct charged by HPD and his assertion that the disciplinary proceeding was baseless. However, the Civil Service Commission's affirmance of HPD's determination was "final and conclusive, and not subject to further review in any court" (Civil Service Law § 76[3]). Pursuant to the doctrine of collateral estoppel, it provides a complete defense to plaintiff's claims against the City defendants in this action (see Ryan v New York Tel. Co., 62 NY2d 494, 499 [1984]; Ventur Group, LLC v Finnerty, 80 AD3d 474, 475 [2011]).

We also find that there is no basis for concluding that the disciplinary action was commenced in retaliation for a letter written by plaintiff 3½ years earlier to an assistant commissioner, complaining that the prices of properties offered for sale by the agency were improper. Nor does the complaint allege a hostile work environment; that claim would, in any [*2]event, be time-barred.

Plaintiff's motion for leave to amend the complaint plainly lacks merit (see Eighth Ave. Garage Corp. v H.K.L. Realty Corp., 60 AD3d 404 [2009], lv dismissed 12 NY3d 880 [2009]). Moreover, there is no authority for plaintiff's proposed hybrid proceeding.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 15, 2011

CLERK