Napolitano v. City of New York

Appellate Division of the Supreme Court of New York

Napolitano v. City of New York

12 A.D.3d 194, 783 N.Y.S.2d 584, 2004 N.Y. App. Div. LEXIS 13173

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

DecidedNovember 9, 2004

StatusPublished

Cited by8 cases

This text of 12 A.D.3d 194 (Napolitano v. City of New York) 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

Napolitano v. City of New York, 12 A.D.3d 194, 783 N.Y.S.2d 584, 2004 N.Y. App. Div. LEXIS 13173 (N.Y. Ct. App. 2004).

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Opinion

Judgment, Supreme Court, New York County (Faviola A. Soto, J.), entered July 31, 2003, dismissing the complaint and bringing up for review an order, same court and Justice, entered May 13, 2003, which, in an action under 42 USC § 1983 alleging defendant Folice Department’s coercion of plaintiffs plea of guilty to disciplinary charges, granted defendants-respondents’ motion [195]*195to dismiss the complaint for failure to state a cause of action, unanimously affirmed, without costs. Appeal from the aforesaid order unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Plaintiff settled the disciplinary charges pending against him, pleading guilty thereto and giving defendants-respondents a general release, and taking in exchange a vested interest retirement. Having accepted the benefits of the settlement, plaintiff ratified the release, and is therefore barred from alleging duress in its execution (see Fruchthandler v Green, 233 AD2d 214, 215 [1996]; Liberty Marble v Elite Stone Setting Corp., 248 AD2d 302, 304 [1998]). That almost two years passed between the alleged duress, i.e., a threat of demotion if plaintiff contested the disciplinary charges, and the filing of the instant complaint further undermined the claim of duress (see Fruchthandler, 233 AD2d at 215; Nasik Breeding & Research Farm v Merck & Co., 165 F Supp 2d 514, 527-528 [SD NY 2001]). Concur—Tom, J.P., Andrias, Sullivan, Ellerin and Sweeny, JJ.

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Judgment, Supreme Court, New York County (Faviola A. Soto, J.), entered July 31, 2003, dismissing the complaint and bringing up for review an order, same court and Justice, entered May 13, 2003, which, in an action under 42 USC § 1983 alleging defendant Folice Department’s coercion of plaintiffs plea of guilty to disciplinary charges, granted defendants-respondents’ motion [195]*195to dismiss the complaint for failure to state a cause of action, unanimously affirmed, without costs. Appeal from the aforesaid order unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Plaintiff settled the disciplinary charges pending against him, pleading guilty thereto and giving defendants-respondents a general release, and taking in exchange a vested interest retirement. Having accepted the benefits of the settlement, plaintiff ratified the release, and is therefore barred from alleging duress in its execution (see Fruchthandler v Green, 233 AD2d 214, 215 [1996]; Liberty Marble v Elite Stone Setting Corp., 248 AD2d 302, 304 [1998]). That almost two years passed between the alleged duress, i.e., a threat of demotion if plaintiff contested the disciplinary charges, and the filing of the instant complaint further undermined the claim of duress (see Fruchthandler, 233 AD2d at 215; Nasik Breeding & Research Farm v Merck & Co., 165 F Supp 2d 514, 527-528 [SD NY 2001]). Concur—Tom, J.P., Andrias, Sullivan, Ellerin and Sweeny, JJ.

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Bluebook (online)

12 A.D.3d 194, 783 N.Y.S.2d 584, 2004 N.Y. App. Div. LEXIS 13173, Counsel Stack Legal Research, https://law.counselstack.com/opinion/napolitano-v-city-of-new-york-nyappdiv-2004.

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