Gerzof v. Gulotta

• Decision Date: 31 May 1977
• Citation: 395 N.Y.S.2d 26,57 A.D.2d 821
• Parties: Julius GERZOF, etc., Plaintiff-Appellant, v. Frank A. GULOTTA, etc., et al., Defendants-Respondents, Nassau Lawyers' Association of Long Island, Inc., Amicus Curiae.
• Court: New York Supreme Court — Appellate Division

Page 26

395 N.Y.S.2d 26

57 A.D.2d 821

Julius GERZOF, etc., Plaintiff-Appellant, v. Frank A. GULOTTA, etc., et al., Defendants-Respondents, Nassau Lawyers' Association of Long Island, Inc., Amicus Curiae.

Supreme Court, Appellate Division, First Department.

May 31, 1977.

R. A. Lippe, Mineola, for plaintiff-appellant.

A. S. Greenwald, New York City, for defendants-respondents.

J. Bauer, Mineola, for amicus curiae.

Before MURPHY, P. J., and BIRNS, CAPOZZOLI and LANE, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, Nassau County, entered August 25, 1976, insofar as appealed from, (1) declaring Section 90 of the Judiciary Law to be constitutional, (2) granting defendants' motion for summary judgment dismissing the complaint, and (3) denying the branch of plaintiff's cross-motion for a preliminary injunction, unanimously modified, on the law, by deleting, as academic, so much thereof as unnecessarily declared Section 90 to be constitutional and, as modified, affirmed, without costs and without disbursements.

Oral application for a continuance of the stay is denied (CPLR § 5519(e); DFI Communications, Inc. v. Greenberg, motion for stay denied, 41 N.Y.2d 902, 394 N.Y.S.2d 586, 363 N.E.2d 312, overruling in effect, 55 A.D.2d 887, 391 N.Y.S.2d 8).

The factual and procedural history of this action is satisfactorily set forth in the decision at Special Term (87 Misc.2d 768, 386 N.Y.S.2d 790). Upon the entry of the subject judgment, the plaintiff appealed to the Court of Appeals on constitutional grounds under CPLR § 5601(b)(1). In a memorandum decision, the Court of Appeals dismissed plaintiff's appeal (40 N.Y.2d 825, 387 N.Y.S.2d 568, 355 N.E.2d 797):

"Cross motion to dismiss the appeal granted only to the extent that the appeal is transferred, on constraint of the Constitution of the State of New York (art. VI, § 5, subd. (b)), to the Appellate Division, Second Department (but see N.Y. Constitution, art. VI, § 4, subd. (i)), on the ground that the sole constitutional question presented on this direct appeal is not substantial (see Matter of Gerzof, 45 A.D.2d 450, 359 N.Y.S.2d 76, mot. for lv. to app. den., app. as of right dismd. and stay den. 35 N.Y.2d 644, 855, 856, 362 N.Y.S.2d 1026, 363 N.Y.S.2d 1027, 321 N.E.2d 555, 884; Mildner v. Gulotta, 405 F.Supp. 182, aff'd 425 U.S. 901, 96 Sup.Ct. 1489, 47 L.Ed.2d 751).

Thereafter, upon plaintiff's motion, the Appellate Division, Second Department, transferred the proceeding to us. The Second Department also stayed the order of suspension pending the determination of this appeal.

While the Court at Special Term refused to dismiss the complaint on the ground of res judicata we are not bound by that determination as the law of this case. (Garfield v. Equitable Life Assurance Society of the United States, 9 A.D.2d 625, 193 N.Y.S.2d 674; CPLR § 5501(a)(1).) The doctrine of res judicata applies to defenses which were not raised but which should have been properly raised in a prior proceeding (Echo Bay Waterfront Corporation v. City of New Rochelle, 275 A.D. 672, 86 N.Y.S.2d 500; 9 Carmody-Wait 2d 63:208, p. 215). In his suspension proceeding, the plaintiff should have but did not raise the defense that Section 90 of the Judiciary Law was unconstitutional under both the Federal and State Constitutions. By failing to raise that defense in the suspension proceeding, the plaintiff waived it and he is now barred from adjudicating that matter in this declaratory judgment action. (Chicot County Dist. v. Bank, 308 U.S. 371, 375, 379, 60 S.Ct. 317, 84 L.Ed. 329.) In the absence of any justiciable controversy, the entire complaint must be dismissed.

Moreover, it should be emphasized that the United States Supreme Court has found that Section 90 does not violate the Federal Constitution. (Mildner v. Gulotta, D.C., 405 F.Supp. 182, aff'd 425 U.S. 901, 96 S.Ct. 1489, 47 L.Ed.2d 751.) It must be concluded that the highest court reached the merits of that case, otherwise the...