Bayer v. City of N.Y.

• Decision Date: 26 March 2014
• Citation: 2014 N.Y. Slip Op. 02005,115 A.D.3d 897,983 N.Y.S.2d 61
• Parties: Hank BAYER, appellant, v. CITY OF NEW YORK, et. al., respondents.
• Court: New York Supreme Court — Appellate Division

115 A.D.3d 897
983 N.Y.S.2d 61
2014 N.Y. Slip Op. 02005

Hank BAYER, appellant,
v.
CITY OF NEW YORK, et. al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

March 26, 2014.

[983 N.Y.S.2d 62]

Wolin & Wolin, Jericho, N.Y. (Alan E. Wolin of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York, N.Y. (Edward F.X. Hart and Marita Ross of counsel), for respondents.

MARK C. DILLON, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN and SANDRA L. SGROI, JJ.

In an action, inter alia, to recover damages for discrimination in employment on the basis of age in violation of Executive Law § 296, the plaintiff appeals from an order of the Supreme Court, Kings County (Landicino, J.), dated October 25, 2012, which, in effect, granted the defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint on the ground that the action was barred by the doctrine of res judicata.

ORDERED that the order is affirmed, with costs.

From 1982 until his retirement in 2005, the plaintiff was employed by the New York City Department of Education (hereinafter the Department) as a plumber. In February 2004, charges were brought against the plaintiff pursuant to Civil Service Law § 75, alleging various types of work-related misconduct, and he was suspended for 30 days without pay. After a hearing, an administrative law judge upheld

[983 N.Y.S.2d 63]

several of the charges and recommended that the plaintiff be suspended for a period of 30 days, to be satisfied by the prehearing suspension he had already served. While the charges were pending, the plaintiff served a notice of claim upon the City. In September 2004, he commenced an action in the Supreme Court (hereinafter the 2004 action) against the City, the Department, and his supervisor, Nunzio Piro, alleging, inter alia, defamation and intentional infliction of emotional distress. In an order dated February 21, 2008, the Supreme Court granted the defendants' motion for summary judgment dismissing the complaint. In an order dated March 10, 2009, this Court affirmed the order of the Supreme Court ( see Bayer v. City of New York, 60 A.D.3d 713, 875 N.Y.S.2d 209).

In October 2005, while the 2004 action was pending, the plaintiff served another notice of claim upon the City. In June 2006, he commenced the instant action in the Supreme Court against the City, the Department, Piro, and two other employees of the Department, Richard Frisby and Michael Fiore, alleging age discrimination and the creation of a hostile work environment in violation of Executive Law § 296. In an order dated October 25, 2012, the Supreme Court, in effect, granted the defendants' motion to dismiss the complaint in the instant action on the ground that the action was barred by the doctrine of res judicata ( seeCPLR 3211[a][5] ).

“Under the doctrine of res...