Bettis v. Kelly

Appellate Division of the Supreme Court of New York

Bettis v. Kelly

68 A.D.3d 578, 891 N.Y.2d 364

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 17, 2009

StatusPublished

Cited by1 cases

This text of 68 A.D.3d 578 (Bettis v. Kelly) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bettis v. Kelly, 68 A.D.3d 578, 891 N.Y.2d 364 (N.Y. Ct. App. 2009).

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Opinion

[579]*579Given plaintiffs admission that he was aware of defendants’ alleged fraud in January 2002, this action, commenced in 2007, alleging claims that defendants violated his rights to equal protection and due process and that defendants violated section 75 of the Civil Service Law and section 14-115 of the Administrative Code of the City of New York, was properly dismissed as barred by the statute of limitations (see CPLR 213 [8]). The action is also barred under the doctrine of res judicata because the instant action and the one plaintiff brought in federal court (see Bettis v Kelly, 2004 WL 1774252, 2004 US Dist LEXIS 15463 [SD NY 2004], affd 137 Fed Appx 381 [2d Cir 2005], cert denied 547 US 1004 [2006]; see also Bettis v Safir, 2000 WL 1336055, 2000 US Dist LEXIS 13285 [SD NY 2000]), are based on the same transaction, namely plaintiffs termination from the New York City Police Department in 1994, and his prior action was dismissed on the merits (see e.g. Heritage Realty Advisors, LLC v Mohegan Hill Dev., LLC, 58 AD3d 435, 436 [2009], lv denied 12 NY3d 830 [2009]).

We have considered plaintiffs remaining contentions and find them unavailing. Concur — Tom, J.P, Andrias, Saxe, McGuire and Manzanet-Daniels, JJ.

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[579]*579Given plaintiffs admission that he was aware of defendants’ alleged fraud in January 2002, this action, commenced in 2007, alleging claims that defendants violated his rights to equal protection and due process and that defendants violated section 75 of the Civil Service Law and section 14-115 of the Administrative Code of the City of New York, was properly dismissed as barred by the statute of limitations (see CPLR 213 [8]). The action is also barred under the doctrine of res judicata because the instant action and the one plaintiff brought in federal court (see Bettis v Kelly, 2004 WL 1774252, 2004 US Dist LEXIS 15463 [SD NY 2004], affd 137 Fed Appx 381 [2d Cir 2005], cert denied 547 US 1004 [2006]; see also Bettis v Safir, 2000 WL 1336055, 2000 US Dist LEXIS 13285 [SD NY 2000]), are based on the same transaction, namely plaintiffs termination from the New York City Police Department in 1994, and his prior action was dismissed on the merits (see e.g. Heritage Realty Advisors, LLC v Mohegan Hill Dev., LLC, 58 AD3d 435, 436 [2009], lv denied 12 NY3d 830 [2009]).

We have considered plaintiffs remaining contentions and find them unavailing. Concur — Tom, J.P, Andrias, Saxe, McGuire and Manzanet-Daniels, JJ.

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Bluebook (online)

68 A.D.3d 578, 891 N.Y.2d 364, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bettis-v-kelly-nyappdiv-2009.

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