Murphy v. City of New York

270 A.D.2d 209, 704 N.Y.S.2d 818, 2000 N.Y. App. Div. LEXIS 3289

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 30, 2000
• Status: Published

Opinion

—Judgment, Supreme Court, New York County (Louis York, J.), entered February 4, 1999, dismissing the complaint pursuant to a prior order that granted defendant’s cross motion for summary judgment, unanimously affirmed, without costs.

We assume in plaintiffs favor that he did not lose standing to maintain this action by reason of the subsequent appointment of a Mental Hygiene Law article 81 guardian for him (see, Mitsinicos v New Rochelle Nursing Home, 258 AD2d 630), but nevertheless affirm on the ground of res judicata. The relief plaintiff seeks, namely, reinstatement to his former position as a police officer, could have been sought in the prior action brought by his guardian that culminated in a settlement annulling plaintiffs resignation from the Police Department and retiring him with ordinary disability benefits (see, Ionescu v Brancoveanu, 246 AD2d 414, 416). Concur — Tom, J. P., Ellerin, Wallach, Rubin and Saxe, JJ.