Opinion
No. 2021-07017 Index No. 716017/20
05-22-2024
John Ciafone, etc., Appellant, v. City of New York, et al., Respondents.
John Ciafone, Astoria, NY, appellant pro se. Sylvia O. Hinds-Radix, Corporation Counsel, New York, NY (Devin Slack and Benjamin H. Pollak of counsel), for respondents.
John Ciafone, Astoria, NY, appellant pro se.
Sylvia O. Hinds-Radix, Corporation Counsel, New York, NY (Devin Slack and Benjamin H. Pollak of counsel), for respondents.
HECTOR D. LASALLE, P.J., JOSEPH J. MALTESE, HELEN VOUTSINAS, LAURENCE L. LOVE, JJ.
DECISION & ORDER
In an action, inter alia, in effect, for review of an academic determination made by an educational institution, the plaintiff appeals from an order of the Supreme Court, Queens County (Tracy Catapano-Fox, J.), entered August 9, 2021. The order granted the motion of the defendants City of New York, LaGuardia Community College, and CUNY pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them.
ORDERED that the order is affirmed, with costs.
In April 2019, the plaintiff commenced an action against, among others, the City of New York, LaGuardia Community College, and CUNY (hereinafter collectively the defendants), inter alia, in effect, for review of an academic determination not to permit the plaintiff to graduate from a paramedic program at LaGuardia Community College (hereinafter the 2019 action). The defendants moved pursuant to CPLR 3211(a)(7) to dismiss the complaint in the 2019 action insofar as asserted against them. The plaintiff cross-moved, among other things, for leave to amend the complaint in the 2019 action. In an order entered March 3, 2020, the Supreme Court, inter alia, granted the defendants' motion and denied, as academic, that branch of the plaintiff's cross-motion which was for leave to amend the complaint in the 2019 action. In a decision and order dated April 5, 2023, this Court affirmed so much of the order entered March 3, 2020, as granted the defendants' motion pursuant to CPLR 3211(a)(7) to dismiss the complaint in the 2019 action insofar as asserted against them (see LaGuardia Community Coll. Paramedic Class 23 Student John Ciafone v City of New York, 215 A.D.3d 653, 654-655). However, this Court modified the order by deleting the provision thereof denying, as academic, that branch of the plaintiff's cross-motion which was for leave to amend the complaint in the 2019 action, and substituting therefor a provision denying that branch of the cross-motion on the merits, determining that that branch of the cross-motion should have been denied on the merits because the proposed amended complaint was patently devoid of merit (see id.).
Meanwhile, in September 2020, the plaintiff commenced this action against, among others, the defendants, inter alia, in effect, again for review of the academic determination not to permit the plaintiff to graduate from the paramedic program at LaGuardia Community College. The defendants moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them, contending, among other things, that the causes of action were precluded by the doctrine of res judicata. In an order entered August 9, 2021, the Supreme Court granted the defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them. The plaintiff appeals.
Pursuant to CPLR 3211(a)(5), a party may move to dismiss a cause of action based upon the doctrine of res judicata (see Williams v City of Yonkers, 160 A.D.3d 1017, 1018; Rudovic v Rudovic, 131 A.D.3d 1225, 1227). That doctrine "precludes a party from litigating a 'claim where a judgment on the merits exists from a prior action between the same parties involving the same subject matter'" (Matter of Josey v Goord, 9 N.Y.3d 386, 389, quoting Matter of Hunter, 4 N.Y.3d 260, 269). "'Although, generally, a dismissal for failure to state a cause of action based on the insufficiency of the allegations in the pleading is not a dismissal on the merits, and does not bar the adequate repleading of the claim in a subsequent action, such a determination has a preclusive effect as to a new complaint for the same cause of action which fails to correct the defect or supply the omission determined to exist in the earlier complaint'" (Duchemin v Village of E. Hampton, 222 A.D.3d 715, 718, quoting Park Slope Auto Ctr., Inc. v Papa, 190 A.D.3d 754, 756).
Here, the 2019 action, which was commenced by the same plaintiff against the same defendants, centered on an alleged academic determination not to permit the plaintiff to graduate from a paramedic program at LaGuardia Community College. In the 2019 action, the Supreme Court granted the defendants' motion to dismiss the complaint insofar as asserted against them, this Court affirmed the portion of the order granting the defendant's motion, and, moreover, this Court determined that that branch of the plaintiff's cross-motion which was to amend the complaint in the 2019 action should have been denied on the merits. As this action is based on the same factual allegations as those asserted in the complaint and the proposed amended complaint in the 2019 action, this action is barred by the doctrine of res judicata.
In light of the foregoing, we need not reach the parties' remaining contentions.
LASALLE, P.J., MALTESE, VOUTSINAS and LOVE, JJ., concur.