Stein v Research Found. City Univ. of N.Y.
Annotate this CaseDecided on October 28, 2013
Supreme Court, Richmond County
Robert Stein, Plaintiff,
against
The Research Foundation City University of New York, Defendants.
101238/13
Plaintiff is pro se.
Defendant is represented by the law firm of Nixon Peabody, LLP.
Joseph J. Maltese, J.
The defendant Research Foundation City University of New York moves to dismiss the plaintiff's complaint. The motion to dismiss is granted.
Facts
In or about September of 2006, the plaintiff was terminated by the Small Business Development Center (hereinafter "SBDC") located on the campus of the College of Staten Island. The SBDC is one of twenty four regional centers of the New York State Small Business [*2]Development Center and receives funding from the City and State Universities of New York. SBDC employed the plaintiff from early 2002 to August of 2006 as a "business advisor." In that role, plaintiff was required to coordinate with local small business owners and entrepreneurs in order to promote economic growth. In or around November of 2005, it is alleged that the plaintiff began to clash with his superiors, most notably Dean Balsamini, the director of SBDC. In a letter dated November 15, 2005, Mr. Balsamini reprimanded the plaintiff for inappropriate use of SBDC office space, and insubordination. The plaintiff contacted Mr. James King, the State Director of the New York State Small Business Development Center as well as administrators of the College of Staten Island to discuss issues at the Staten Island SBDC. In effect, this amounted to circumventing established procedure since the New York State Development Center is the parent organization of the Staten Island SBDC. Upon discovering the plaintiff's correspondence, the SBDC authored a warning letter suggesting that any further contact with outside authorities would result in immediate termination. Ultimately, the College of Staten Island went through a restructuring based on budgetary concerns and eliminated one of two business advisor positions. Plaintiff's contract was not renewed allegedly because he was the junior advisor on staff.
In the years following his termination, plaintiff contacted the Public Integrity Bureau of the New York State Attorney General's office, the Civil Rights Center of the United States Department of Labor, the Department of Investigation for the City of New York, the United States Department of Justice and the Equal Employment Opportunity Commission before ultimately filing suit against the City University of New York, the SBDC, the College of Staten Island and Dean Balsamini in April of 2011.The plaintiff indicated that he, along with others from the college, retained the services of Attorney Thomas Bello to assist them in the legal proceedings. The record is unclear as to how long this relationship lasted, but the plaintiff's submissions indicate Attorney Bello failed to file necessary documents even though he provided the plaintiff with notarized documentation and advised him the case was proceeding smoothly. Attorney Bello has previously been the subject of a legal malpractice suit brought by a different individual and is under investigation by the Staten Island District Attorney.[FN1] The record is also unclear as to the status of any proceeding brought by plaintiff against Attorney Bello concerning their relationship. However, on October 23, 2013 the New York Supreme Court Appellate Division, Second Department in Matter of Thomas F. Bello, an attorney and counselor-at-law, discipline number D38484 issued an order accepting the resignation of Attorney Thomas F. Bello from the bar and thereby disbarred him and struck his name from the roll of attorneys and counselors-at-law.[FN2]
Ultimately, the plaintiff pursued the 2011 suit pursuant to New York Labor Law § 740, which alleged retaliatory termination for "whistle blowing" during his tenure at the SBDC from 2002 to 2006. The defendants in the 2011 action were the Research Foundation of the City University of New York, the College of Staten Island, SBDC and Dean Balsamini. [*3]
In that action, the defendants moved to dismiss the plaintiff's case based on the applicable statute of limitations which requires suits to be filed "within one year after the alleged retaliatory personnel action was taken."[FN3] Justice Philip G. Minardo, of this court previously granted the defendant's motion to dismiss that suit, which was filed nearly three years after the statue of limitations had expired. Justice Minardo considered the plaintiff's rebuttal argument centered on Mr. Bello's alleged malpractice, but found that it did not provide an excuse for filing the 2011 suit after the statute of limitations period had expired.
Now, the plaintiff, pro se, initiated this 2013 suit against the Research Foundation City University of New York [sic]. Here, the plaintiff seeks no monetary compensation for his claims, but requests a jury to review the documents received as a result of his Freedom of Information Act requests. Plaintiff's complaint states that it is his "responsibility to report ongoing waste and abuse" of tax dollars but otherwise offers no cognizable cause of action under law or equity. The plaintiff cites to no authority, other than the cover page of a New Mexico Supreme Court case, which would support his position or otherwise entitle this court to ignore the res judicata effect of Justice Minardo's 2011 decision and order.
Discussion
The court recognizes that the plaintiff is proceeding pro se and as such, is entitled to a degree of latitude due to his lack of formal legal training or familiarity with court procedures.[FN4] Thus, his pleadings and papers are awarded all favorable inferences which may be reasonably drawn from them.[FN5] Notwithstanding that deference, a pro se litigant who proceeds in such capacity is not entitled to any greater rights or privileges than any other party, and cannot get concessions which would curtail another party's rights.[FN6]
Despite any and all favorable inferences granted toward the plaintiff, his instant complaint is barred by the doctrine of res judicata. This doctrine bars relitigation of substantially similar claims "where a judgement on the merits exists from a prior action between the same parties involving the same subject matter."[FN7] New York follows the "transactional" approach to res judicata which means that any claim arising under the same transaction or series of transactions is barred, "even if based [*4]upon different theories or if seeking a different remedy."[FN8] In order to determine if a claim is part of the same transaction, courts must apply a pragmatic test analyzing "whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage."[FN9] In the instant case, plaintiff's complaint focuses entirely on alleged fraud and misuse of taxpayer funds during his tenure at SBDC from 2002 to 2006 while his previous 2011 suit was centered on alleged retaliatory actions by the SBDC after the plaintiff attempted to bring allegations of fraud and misuse of funds to the attention of outside organizations.
Assuming, arguendo, that the instant suit alleges a different cause of action than the 2011 suit, it is axiomatic that the two suits concern the same factual background, time period and parties which will be barred if there was a final judgement on the merits of the 2011 claim. New York considers a dismissal on statute of limitation grounds "a dismissal on the merits" for res judicata purposes and bars a second similar claim.[FN10] Justice Minardo's 2011 decision and order clearly explained that the plaintiff's action was barred by the one year statute of limitations pursuant to Labor Law § 740 claims and dismissed the action with prejudice. This is sufficiently final for res judicata purposes and thus bars the current claim since it is functionally equivalent to his previously dismissed cause of action.
Moreover, the plaintiff's instant action is not based on legal malpractice but instead is centered on the alleged actions of the Research Foundation. While the court recognizes the plaintiff may have a malpractice action based on Attorney Bello's failure to appropriately file documents in the 2011 case before the statute of limitations period expired,[FN11] any such claim does not bear on the res judicata analysis since the malpractice suit is separate and apart from his claim against this defendant. The substance of his current claim against the Research Foundation is the same as his previous claim and thus cannot be re-litigated. The plaintiff's claims against Attorney Bello would be best pursued in a separate action provided it is not filed outside the three year statute of limitation which runs from the date of the original malpractice.[FN12]
The defendants chose not to pursue sanctions in this motion, but may seek sanctions if yet [*5]another application is made seeking the same relief. This plaintiff, pro se, is advised that he may file a notice of appeal of this decision to the New York Supreme Court Appellate Division, Second Department at 45 Monroe Place, Brooklyn New York within thirty days from the date of service of this entered order and thereafter perfect or finalize that appeal.[FN13]
Accordingly, it is hereby:
ORDERED, that the motion to dismiss made by The Research Foundation City University of New York is granted with prejudice.
ENTER,
DATED: October 28, 2013
Joseph J. Maltese
Justice of the Supreme Court
Footnotes
Footnote 1: Hayes v. Bello, 23 Misc 3d 534 [Sup Ct, Richmond County 2009].
Footnote 2: New York Law Journal, October 25, 2013 P. 9.
Footnote 3: Labor Law § 740 [4][a]
Footnote 4: Mosso v. Mosso, 6 AD3d 827 [3d Dept. 2004].
Footnote 5: Moore v. County of Rensselaer, 156 AD2d 784 [3d Dept. 1989].
Footnote 6: Roundtree v. Singh, 143 AD2d 995 [2d Dept. 1988].
Footnote 7: In re Hunter, 4 NY3d 260 [2005].
Footnote 8: O'Brien v. City of Syracuse, 54 NY2d 353, 357 [1981].
Footnote 9: Restatement [Second] of Judgements § 24 [2]; Smith v. Russell Sage Coll., 54 NY2d
185, 192-93 [1981].
Footnote 10: Cold Spring Harbor Area Civic Ass'n v. Bd. of Zoning Appeals, 305 AD2d 444, 445
[2d Dept. 2003]; Lake Anne Realty Corp. v. Planning Bd., 262 AD2d 413 [2d Dept. 1999].
Footnote 11: See, e.g. Glamm v. Allen, 57 NY2d 87 [1982]
Footnote 12: CPLR 214 [6].
Footnote 13: CPLR § 5513; see, generally New York Civil Practice Law and Rules [CPLR] Articles
55 and 57.
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