Reilly v. Reid

• Decision Date: 21 July 1977
• Citation: 397 N.Y.S.2d 429,58 A.D.2d 926
• Parties: In the Matter of Dermot C. REILLY, Petitioner, v. Ogden R. REID, as Commissioner of the New York State Department of Environmental Conservation, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 429

397 N.Y.S.2d 429

58 A.D.2d 926

In the Matter of Dermot C. REILLY, Petitioner, v. Ogden R. REID, as Commissioner of the New York State

Department of Environmental Conservation, et al.,

Appellants.

Supreme Court, Appellate Division, Third Department.

July 21, 1977.

Louis J. Lefkowitz, Atty. Gen. (Michael F. Colligan, Albany, of counsel), for appellants.

DeGraff, Foy, Conway & Holt-Harris, Albany (Algird F. White, Jr., Albany, of counsel), for petitioner.

Before KOREMAN, P. J., and SWEENEY, MAHONEY, LARKIN and HERLIHY, JJ.

MEMORANDUM DECISION.

Appeal, by permission, from an order of the Supreme Court at Special Term, entered August 24, 1976 in Albany County, which denied a motion to dismiss petitioner's application in a proceeding pursuant to CPLR article 78 upon the ground that a prior proceeding is res judicata.

The petitioner by an application dated January 27, 1976 commenced an article 78 proceeding wherein he alleged that the respondents had abolished his Civil Service position of Associate Attorney and that he was entitled to the protection of seniority pursuant to section 80 of the Civil Service Law and should not be terminated from employment effective January 28, 1976 as proposed by respondents. That proceeding was determined adversely to petitioner at Special Term and its judgment was affirmed by this court (see Matter of Reilly v. Reid, 55 A.D.2d 975, 390 N.Y.S.2d 655, mot. for 1v. to app. den. 41 N.Y.2d 806, 395 N.Y.S.2d ---, 363 N.E.2d 1386 (1977)).

We find that the issues which the petitioner seeks to raise in this proceeding are substantially the same as those previously before the court in the prior proceeding, and, accordingly, this proceeding is barred by the principles of res judicata and collateral estoppel (Matter of Gowan v. Tully, App.Div., 397 N.Y.S.2d 427 (decided herewith)).

Order reversed, on the law, and petition dismissed, without costs.