Yan Ping Xu v. City of New York

Appellate Division of the Supreme Court of New York

Yan Ping Xu v. City of New York

82 A.D.3d 559, 918 N.Y.2d 717

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

DecidedMarch 17, 2011

StatusPublished

Cited by2 cases

This text of 82 A.D.3d 559 (Yan Ping Xu 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

Yan Ping Xu v. City of New York, 82 A.D.3d 559, 918 N.Y.2d 717 (N.Y. Ct. App. 2011).

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Opinion

Plaintiff previously raised her current claim under Civil Service Law § 75-b (whistleblower law) in a CPLR article 78 proceeding (see 22 Misc 3d 1116[A], 2009 NY Slip Op 50147[U] [2009], mod 77 AD3d 40 [2010]). At the time the order under review was decided, the motion court correctly held that the dismissal of the article 78 proceeding collaterally estopped plaintiff from raising the same claim in this action. However, that order ceased to have any preclusive effect once this Court modified and remanded for further proceedings (see Neufville v Walton-Steed, 30 Misc 3d 133[A], 2011 NY Slip Op 50051[U] [2011]). Nevertheless, dismissal of the subject action is warranted pursuant to CPLR 3211 (a) (4), because of the pending proceeding, without prejudice to plaintiff moving to amend her petition. Concur — Andrias, J.P, Saxe, Friedman, Moskowitz and Richter, JJ.

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Plaintiff previously raised her current claim under Civil Service Law § 75-b (whistleblower law) in a CPLR article 78 proceeding (see 22 Misc 3d 1116[A], 2009 NY Slip Op 50147[U] [2009], mod 77 AD3d 40 [2010]). At the time the order under review was decided, the motion court correctly held that the dismissal of the article 78 proceeding collaterally estopped plaintiff from raising the same claim in this action. However, that order ceased to have any preclusive effect once this Court modified and remanded for further proceedings (see Neufville v Walton-Steed, 30 Misc 3d 133[A], 2011 NY Slip Op 50051[U] [2011]). Nevertheless, dismissal of the subject action is warranted pursuant to CPLR 3211 (a) (4), because of the pending proceeding, without prejudice to plaintiff moving to amend her petition. Concur — Andrias, J.P, Saxe, Friedman, Moskowitz and Richter, JJ.

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Bluebook (online)

82 A.D.3d 559, 918 N.Y.2d 717, Counsel Stack Legal Research, https://law.counselstack.com/opinion/yan-ping-xu-v-city-of-new-york-nyappdiv-2011.

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