Diorio v. Ossining Union Free Sch. Dist.
| Decision Date | 11 July 2011 |
| Docket Number | No. 26296/10.,26296/10. |
| Citation | 960 N.Y.S.2d 49,2011 N.Y. Slip Op. 52523,36 Misc.3d 1224 |
| Court | New York Supreme Court |
| Parties | Alfred Peter DIORIO, Plaintiff, v. OSSINING UNION FREE SCHOOL DISTRICT, Mary E. Fountain, Phyllis Glassman, Baumann & Sons Buses, Inc., William Heitmann, and Carlos Sanchez, Defendants. |
The following papers numbered 1 to 31 were read on this motion by defendants Baumann & Sons Buses, Inc. and William Heitmann for an order pursuant to CPLR 3211(a)(5) and (7) dismissing the causes of action against Baumann and Heitmann (collectively the Baumann defendants). Defendants Ossining Union Free School District, Mary Fountain, and Phyllis Glassman (collectively the Ossining defendants) move for an order dismissing the cause of action asserted against them for plaintiff's failure to plead prima facie tort in the notice of claim, and pursuant to CPLR 3211(a)(7) dismissing the cause of action for prima facie tort. Plaintiff cross moves for an order pursuant to Education Law 3813(2–a) and General Municipal Law 50–e(5) granting leave to serve a late Notice of Claim. For purposes of this order the motions are being considered together.
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¦Notice of Motion–Affirmation of Alan Pearl in Support—Exhibits ¦1–5 ¦
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¦Defendants' Memorandum of Law in Support of Motion to Dismiss ¦6 ¦
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¦Affidavit in Opposition—Exhibit ¦7–8 ¦
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¦Plaintiff's Memorandum of Law ¦9 ¦
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¦Affirmation of Alan Pearl in Further Support ¦10 ¦
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¦Defendants' Reply Memorandum of Law ¦11 ¦
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¦Notice of Motion—Affirmation of David Kwee—Affidavit of Mary ¦12–19¦
¦Fountain—Exhibits ¦ ¦
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¦Memorandum of Law in Support ¦20 ¦
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¦Notice of Cross Motion–Plaintiff's Affidavit—Exhibits ¦21–24¦
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¦Plaintiff's Memorandum of Law ¦25 ¦
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¦Affirmation in Opposition to Plaintiff's Cross Motion ¦26 ¦
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¦Reply Affidavit—Exhibits ¦27–30¦
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¦Plaintiff's Reply Memorandum of Law in Support ¦31 ¦
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Upon the foregoing papers, it is ordered that these motions are decided as follows:
This action involves events surrounding plaintiff's disqualification and termination as a bus driver for Baumann & Sons Buses in September 2008. Plaintiff alleges that following his September 4, 2008 interactions with Safety Supervisor Carlos Sanchez, a new employee, both Terminal Manager William Heitmann and Baumann sought to have the Ossining Union Free School District disqualify plaintiff. It is alleged that a September 4, 2008 letter drafted by Sanchez defames plaintiff in that it falsely states that when Sanchez signaled plaintiff to slow down on his way into the garage he threatened Sanchez stating “I don't care who you are next time that you be there I will run you over.” It is alleged that on September 8, 2008 Heitmann sent a defamatory email to Mary Fountain, Supervisor of Transportation for the School District, stating plaintiff “threatened to drive his car over Safety Supervisor Carlos Sanchez, when on Company property, the Safety Officer signaled to slow down.” It is alleged Heitmann's letter states plaintiff engaged in irrational behavior, was yelling and screaming at work, was a threat to the safety of the children, and had a loose wire. Fountain allegedly sent a letter dated September 10, 2008 requesting that Baumann remove plaintiff from service as a bus driver for the School District. It is alleged Baumann, through Heitmann, had the school district disqualify plaintiff, then stated plaintiff had to be terminated because there was no work for him in the single site district. It is alleged Phyllis Glassman is the Superintendent of the School District. In the complaint, plaintiff asserts causes of action for libel, libel per se, and prima facie tort.
The Baumann defendants move for an order pursuant to CPLR 3211(a)(5) and (7) dismissing the causes of action against Baumann and Heitmann, arguing the complaint fails to state a cause of action upon which relief can be granted and plaintiff's claims are barred by the doctrines of res judicata and collateral estoppel. Defendants argue the allegations in this matter are identical to those presented in an arbitration plaintiff attended and in a complaint he filed against the same defendants in the United States District Court for the Southern District of New York. The Baumann defendants argue the issues concerning plaintiff's disqualification and termination have been adjudicated by both an Arbitrator and a Federal District Court Judge and plaintiff should be barred from relitigating these issues.
In opposition, plaintiff argues the claims in this matter were not previously litigated and could not have been litigated in the arbitration, where the sole issue was whether there was a violation of the collective bargaining agreement. Plaintiff argues the parties to the instant action, other than Baumann, were not parties to the arbitration, and the Union did not zealously press his claim in the arbitration.
“The doctrine of res judicata operates to preclude reconsideration of claims actually litigated and resolved in a prior proceeding, as well as claims for different relief against the same party which arise out of the same factual grouping or transaction, and which should have or could have been resolved in the prior proceeding” (Ippolito v. TJC Dev., LLC, 83 AD3d 57, 920 N.Y.S.2d 108 [2d Dept 2011] ). Once a claim is brought to final judgment, all other claims between the same parties arising out of the same transaction or series of transactions are barred, even if based on a different legal theory or seeking a different remedy (Ippolito v. TJC Dev., LLC, 83 AD3d 57, 920 N.Y.S.2d 108 [2d Dept 2011]; Employers' Fire Insurance Company v. Brookner, 47 AD3d 754, 850 N.Y.S.2d 554 [2d Dept 2008] ).
“The doctrine of collateral estoppel bars relitigation of an issue which has necessarily been decided in a prior action and is determinative of the issues disputed in the present action, provided that there was a full and fair opportunity to contest the decision now alleged to be controlling” (Ippolito v. TJC Dev., LLC, 83 AD3d 57, 920 N.Y.S.2d 108 [2d Dept 2011] ). “The party seeking the benefit of collateral estoppel must prove that the identical issue was necessarily decided in the prior action and is decisive in the present action, and the party attempting to defeat its application has the burden of establishing the absence of a full and fair opportunity to contest the prior determination” (G. Rama Construction Enterprises, Inc. v. 80–82 Guernsey Street Associates, LLC, 43 AD3d 863, 841 N.Y.S.2d 669 [2d Dept 2007] ). “The doctrines of res judicata and collateral estoppel apply to arbitration awards with the same force and effect as they apply to judgments of a court” (Ippolito v. TJC Dev., LLC, 83 AD3d 57, 920 N.Y.S.2d 108 [2d Dept 2011] ).
The Baumann defendants argue plaintiff's claims arising out of his disqualification as a bus driver and subsequent termination were decided in the arbitration proceeding. After the Union filed a grievance challenging Baumann's decision to remove Mr. Diorio as a bus driver, an arbitration hearing was held. The Arbitrator issued his opinion and award on April 14, 2009, finding Baumann did not violate the collective bargaining agreement when it removed Mr. Diorio as a bus driver at the request of the School District, but it did violate the agreement by terminating Mr. Diorio from all employment at Baumann. Baumann was directed to assign Mr. Diorio any unit work he was able to perform for a period of twelve months from the date he was removed as a driver. “[R]es judicata only bars additional actions between the same parties on the same claims based upon the same harm” (Employers' Fire Insurance Company v. Brookner, 47 AD3d 754, 850 N.Y.S.2d 554 [2d Dept 2008] ). Res judicata is inapplicable to the arbitration award, as neither the plaintiff nor William Heitmann were parties to the arbitration. Furthermore, the Baumann defendants fail to demonstrate that the claims in this matter were actually decided or could have been decided in the arbitration proceeding ( see Courthouse Corporate Ctr. LLC v. Schulman, 74 AD3d 725, 902 N.Y.S.2d 160 [2d Dept 2010] ). Article VII of the collective bargaining agreement sets forth the procedures for resolving grievances and disputes between employees and Baumann. Pursuant to the agreement, a grievance may under certain circumstances be submitted to an Arbitrator for decision. However, a...
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