Gerzof v. Gulotta
| Decision Date | 23 August 1976 |
| Citation | 87 Misc.2d 768,386 N.Y.S.2d 790 |
| Parties | Julius GERZOF, also known as Julius M. Gerzof, Plaintiff, v. Frank A. GULOTTA, Individually and as Presiding Justice, Appellate Division of the Supreme Court of the State of New York, Second Judicial Department, et al., Defendants. |
| Court | New York Supreme Court |
On September 9, 1974, the Appellate Division, Second Department suspended plaintiff from the practice of law. In Re Gerzof, 45 A.D.2d 450, 359 N.Y.S.2d 76 (2d Dept. 1974). He moved for leave to appeal to the Court of Appeals in the Appellate Division. Thereafter, plaintiff moved for leave to appeal in the Court of Appeals and also sought to appeal as of right under CPLR § 5601(b). Those motions were denied and the appeal was dismissed. Matter of Gerzof, 35 N.Y.2d 644, 35 N.Y.2d 855, 35 N.Y.2d 856 (1974). * He then instituted an action under 42 U.S.C. § 1983 in the United States District Court for the Eastern District of New York, seeking a declaration that Section 90 of the New York Judiciary Law, under which his suspension was ordered, was violative of the United States Constitution. Pursuant to 28 U.S.C. § 2281, District Judge Jack B. Weinstein impaneled a three-judge court and stayed the suspension order pending the conclusion of that action.
On October 16, 1975, the three-judge court, in a decision by Judge Neaher, dismissed plaintiff's complaint on the ground that 'under prevailing standards of federalism and comity, abstention is . . . appropriate.' Mildner v. Gulotta, 405 F.Supp. 182, 185 (E.D.N.Y.1975). Judge Neaher, in what must be ruled dictum, found no merit in the constitutional claims. Judge Moore filed a concurring opinion in which he urged dismissal of plaintiff's claim on the merits. Judge Weinstein filed a lengthy dissenting opinion. The decision of the three-judge court was affirmed by the United States Supreme Court. Gerzof v. Gulotta, 425 U.S. 901, 96 S.Ct. 1489, 47 L.Ed.2d 751 (1976). Justices Marshall and Powell stated that they 'would postpone consideration of the question of jurisdiction to a hearing of the case on the merits.' Id.
On April 14, 1976, the Appellate Division stayed the effective date of the suspension order until September 1, 1976. Thereafter, this action for a declaration that Section 90 is unconstitutional under both the United States and New York State Constitutions was commenced. Plaintiff requested an order permanently enjoining defendants from carrying out the suspension order. Plaintiff's request that the Appellate Division continue the stay pending the termination of this action was denied in an order dated July 30, 1976.
The defendants now move to dismiss the complaint, pursuant to CPLR §§ 3211(a) (5) and (7). They claim that this action is barred by the doctrine of Res judicata and that the complaint fails to state a cause of action. Plaintiff cross-moves to treat this as a motion for summary judgment under CPLR § 3211(c).
Defendants' assertion that this action is barred by the doctrine of Res judicata is based upon the contention that the three-judge court has already ruled on the merits of plaintiff's constitutional claims and that this ruling on the merits has been affirmed by the United States Supreme Court. I find that this contention is incorrect.
The doctrine of Res judicata, simply stated, is that a final judgment on the merits, rendered by a court of competent jurisdiction, is conclusive as to the rights of the parties in subsequent actions involving the same cause of action. Schuykill Fuel Corp. v. B & C Nieberg Realty Corp.,250 N.Y. 304, 607, 165 N.E. 456, 458 (1929); 5 Weinstein-Korn-Miller, New York Civil Practice, 5011.10, 5011.11. An important corollary of this doctrine is that the party asserting the defense of Res judicata must prove that the prior judgment was rendered on the merits. Watts v. Swiss Bank Corp., 27 N.Y.2d 270, 317 N.Y.S.2d 315, 265 N.E.2d 739 (1970); Clark v. Scovill, 198 N.Y. 279, 91 N.E. 800 (1910). In the instant case, defendants have failed to meet their burden of showing that the prior decisions were on the merits.
The three-judge court did not base its dismissal of plaintiff's federal action on the merits of his constitutional claims. Although there was some discussion of the merits of those claims, the majority opinion concluded that it was improper for the federal court to interfere in a state attorney disciplinary matter. Mildner v. Gulotta, supra at 196.
In his concurring opinion, Judge Moore agreed the case should be dismissed but disagreed with the finding that abstention under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), was proper and stated that, '. . . I would dismiss on the merits', Mildner v. Gulotta, supra, 405 F.Supp. at 199. Clearly, if the three-judge court had decided plaintiff's constitutional claim on the merits, there would have been no need for Judge Moore's opinion.
The United States Supreme Court has recently held that the dismissal of a complaint by a three-judge court based upon the Younger abstention doctrine is not a decision on the merits of a plaintiff's constitutional attack upon a state statute. MTM Inc. v. Baxley, 420 U.S. 799, 95 S.Ct. 1278, 43 L.Ed.2d 636 (1975). In reaching its decision, the court relied on Gonzalez v. Automatic Employees Credit Union, 419 U.S. 90, 95 S.Ct. 289, 42 L.Ed.2d 249 (1974), where issues such as abstention were deemed to be issues 'short of the merits . . ..' Id. at 99, 95 S.Ct. 289.
Defendants have attached great significance to the fact that the court in MTM concluded that a dismissal on the ground of abstention strips it of jurisdiction under 28 U.S.C. § 1253 and thus requires the dismissal of an appeal brought under that statute. The statute provides for a direct appeal to the Supreme Court from the order of the three-judge court 'granting or denying . . . an interlocutory or permanent injunction . . ..' Defendants argue that, in light of MTM, the Supreme Court,'s affirmance in the instant action indicates that the Supreme Court believed that the three-judge court's decision reached the merits of plaintiff's constitutional claim. This contention is not persuasive. Firstly, MTM clearly states that the dismissal of a complaint based upon abstention is not on the merits. Secondly, this argument overlooks the opinion of Justices Marshall and Powell in plaintiff's Supreme Court case. These two justices stated that they would have postponed consideration of jurisdiction until the case was heard 'on the merits'. Gerzof v. Gulotta, supra, 96 S.Ct. 1489, emphasis added. The logical implication of the language used by these distinguished justices is that the Supreme Court upheld the lower court's dismissal without determining the merits.
Defendants also rely heavily on Becker v. Levitt, 81 Misc.2d 664, 366 N.Y.S.2d 940 (Sup.Ct. Nassau County 1975) as authority for the proposition that a federal court's determination that it lacks jurisdiction over a particular case following a discussion of that case's merits creates a Res judicata bar to the hearing of the same claim in a state court. Becker is readily distinguishable from the instant case. In Becker, the United States District Court rejected plaintiff's application for a three-judge court to hear his claim that Section 54 of the State Finance Law was unconstitutional and dismissed the complaint. The United States Court of Appeals for the Second Circuit affirmed. Becker v. Levitt, 489 F.2d 1087 (2d Cir. 1973). The basis for the dismissal was that the federal court was without jurisdiction because the claim did not present a substantial federal question. See 28 U.S.C. §§ 1331, 2281.
Becker v. Levitt, supra, at 1090.
Thus, in Becker, the dismissal on jurisdictional grounds was based entirely upon a finding that the plaintiff's claims lacked merit. In the instant action, however, the federal court's dismissal was not based upon such a determination. Judge Weinstein specifically ruled that plaintiff's claims were substantial enough to require the convening of a three-judge court. The complaint was dismissed because of the Younger doctrine, a doctrine not at all dependent upon a determination on the merits.
Even if there were a question as to whether the three-judge court dismissed the complaint on the merits, Res judicata would not be applicable. As stated previously, defendants bear the burden of proving the elements of Res judicata. Thus, the existence of any doubt as to whether the previous judgment was on the merits precludes dismissal under CPLR § 3211(a)(5).
Plaintiff correctly points out that the claims raised under the New York State Constitution were never before the federal court and cannot possibly be barred by Res judicata. This issue was succinctly dealt with by ...
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