Weslowski v. Zugibe
| Citation | 167 A.D.3d 972,91 N.Y.S.3d 114 |
| Decision Date | 19 December 2018 |
| Docket Number | Index No. 31752/16,2016–08490 |
| Parties | John L. WESLOWSKI, Respondent-Appellant, v. Patricia ZUGIBE, etc., et al., Appellants-Respondents. |
| Court | New York Supreme Court — Appellate Division |
167 A.D.3d 972
91 N.Y.S.3d 114
John L. WESLOWSKI, Respondent-Appellant,
v.
Patricia ZUGIBE, etc., et al., Appellants-Respondents.
2016–08490
Index No. 31752/16
Supreme Court, Appellate Division, Second Department, New York.
Argued—September 4, 2018
December 19, 2018
DECISION & ORDER
In an action, inter alia, to recover damages for breach of contract, the defendants appeal, and the plaintiff cross-appeals, from an order of the Supreme Court, Rockland County (William A. Kelly, J.), dated July 21, 2016. The order, insofar as appealed from, denied those branches of the motion of the defendants Jeffrey J. Fortunato and the County of Rockland and the separate motion of the defendant Patricia Zugibe which were pursuant to CPLR 3211(a) to dismiss the third cause of action insofar as asserted against each of them. The order, insofar as cross-appealed from, granted those branches of the motion of the defendants Jeffrey J. Fortunato and the County of Rockland which were pursuant to CPLR 3211(a) to dismiss the first, second, fourth, fifth, sixth, and seventh causes of action insofar as asserted against the defendant Jeffrey J. Fortunato and those branches of the separate motion of the defendant Patricia Zugibe which were pursuant to CPLR 3211(a) to dismiss those causes of action insofar as asserted against her.
ORDERED that the order is reversed insofar as appealed from, on the law, and those branches of the motion of the defendants Jeffrey J. Fortunato and the County of Rockland and the separate motion of the defendant Patricia Zugibe which were pursuant to CPLR 3211(a) to dismiss the third cause of action insofar as asserted against each of them are granted; and it is further,
ORDERED that the order is affirmed insofar as cross-appealed from; and it is further,
ORDERED that one bill of costs is awarded to the defendants.
In December 2012, the plaintiff, formerly an attorney for the County of Rockland, commenced an action in the United States District Court for the Southern District of New York (hereinafter the District Court) against the County, Patricia Zugibe, formerly the County Attorney, and Jeffrey J. Fortunato, formerly Deputy County Attorney, alleging that the plaintiff's employment was terminated as of December 4, 2009, due to the defendants' wrongful conduct. The plaintiff asserted, inter alia, causes of action alleging violations of the Equal Protection Clause, the First Amendment, and his due process rights under the United States Constitution (hereinafter the federal action). The District Court, among other things, dismissed those causes of action for failure to state a claim, and the United States Court of Appeals for the Second Circuit upheld the District Court's determination.
In May 2016, the plaintiff commenced this action in the Supreme Court, Rockland County, against the County, Zugibe, and Fortunato, asserting causes of action alleging breach of a collective bargaining
agreement (first cause of action), breach of an alleged oral promise to pay him accumulated leave (seventh cause of action), violation of Executive Law § 296 (third cause of action), and violations of the Equal Protection Clause (second cause of action), his right to free speech (fourth cause of action), and his due process rights (fifth and sixth causes of action) under the New York State Constitution. Thereafter, the County and Fortunato moved, and Zugibe separately moved, pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against each of them.
In an order dated July 21, 2016, the Supreme Court, inter alia, granted those branches of the defendants' separate motions which were to dismiss the complaint insofar as asserted against each of them, except for the third cause of action. The defendants appeal from so much of the order as denied those branches of their separate motions which were to dismiss the third cause of action insofar as asserted against each of them. The plaintiff cross-appeals from so much of the order as granted those branches of the motion of the County and Fortunato which were pursuant to CPLR 3211(a) to dismiss the first, second, fourth, fifth, sixth, and seventh causes of action insofar as asserted against Fortunato and those branches of Zugibe's separate motion which were pursuant to CPLR 3211(a) to dismiss those causes of action insofar as asserted...
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...that there was identity of the issues such that the federal action had preclusive effect in this action (see Weslowski v. Zugibe , 167 A.D.3d 972, 975, 91 N.Y.S.3d 114 ; Burgos v. New York Village of Presbyt. Hosp. , 155 A.D.3d 598, 600–601, 65 N.Y.S.3d 45 ; Jensen v. Old Westbury , 160 A.D......
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...plaintiff also failed to sufficiently plead that the City's actions constituted an equal protection violation (see Weslowski v. Zugibe, 167 A.D.3d 972, 975, 91 N.Y.S.3d 114 ). Accordingly, we agree with the Supreme Court's determination to direct dismissal of the 2nd, 3rd, 4th, 8th, 9th, 11......
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