           SUPREME COURT OF THE STATE OF NEW YORK
              Appellate Division, Fourth Judicial Department

459
CA 13-01332
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, LINDLEY, AND VALENTINO, JJ.


MARY KALK BIELBY, PLAINTIFF-APPELLANT,

                     V                               MEMORANDUM AND ORDER

DANIEL MIDDAUGH, INDIVIDUALLY AND AS SHERIFF
OF ONEIDA COUNTY, PETER PARAVATI, INDIVIDUALLY
AND AS UNDERSHERIFF OF ONEIDA COUNTY SHERIFF=S
DEPARTMENT, THE ESTATE OF JAMES ENGLISH,
DECEASED, JOSEPH LISI, INDIVIDUALLY AND AS AN
EMPLOYEE OF ONEIDA COUNTY SHERIFF=S DEPARTMENT,
COUNTY OF ONEIDA, AND PATRICIA COPPERWHEAT,
INDIVIDUALLY AND AS AN EMPLOYEE OF ONEIDA COUNTY
SHERIFF=S DEPARTMENT, DEFENDANTS-RESPONDENTS.


BOSMAN LAW FIRM, LLC, ROME (A.J. BOSMAN OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

GORMAN, WASZKIEWICZ, GORMAN & SCHMITT, UTICA (BARTLE J. GORMAN OF COUNSEL),
FOR DEFENDANTS-RESPONDENTS DANIEL MIDDAUGH, INDIVIDUALLY AND AS SHERIFF
OF ONEIDA COUNTY, PETER PARAVATI, INDIVIDUALLY AND AS UNDERSHERIFF OF
ONEIDA COUNTY SHERIFF=S DEPARTMENT, COUNTY OF ONEIDA, AND PATRICIA
COPPERWHEAT, INDIVIDUALLY AND AS AN EMPLOYEE OF ONEIDA COUNTY SHERIFF=S
DEPARTMENT.

BARTH SULLIVAN BEHR, SYRACUSE (JAMES J. GRECO OF COUNSEL), FOR
DEFENDANT-RESPONDENT JOSEPH LISI, INDIVIDUALLY AND AS AN EMPLOYEE OF
ONEIDA COUNTY SHERIFF=S DEPARTMENT.

DAVID R. DIODATI, NEW HARTFORD, FOR DEFENDANT-RESPONDENT THE ESTATE OF
JAMES ENGLISH, DECEASED.


     Appeal from an order and judgment (one paper) of the Supreme Court,
Oneida County (Erin P. Gall, J.), entered October 26, 2012. The order
and judgment granted the motions of defendants to dismiss the amended
complaint.

     It is hereby ORDERED that the order and judgment so appealed from
is unanimously modified on the law by denying those parts of the motion
of defendants Daniel Middaugh, individually and as Sheriff of Oneida
County, Peter Paravati, individually and as Undersheriff of Oneida County
Sheriff=s Department, County of Oneida, and Patricia Copperwheat,
individually and as an employee of the Oneida County Sheriff=s Department
seeking dismissal of the seventh and eighth causes of action and
reinstating those causes of action of the amended complaint against those
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                                                                CA 13-01332

defendants, and by denying the motion of defendant estate of James English
and reinstating the amended complaint with respect to that defendant,
and as modified the order and judgment is affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages
relative to the termination of her employment with the Oneida County
Sheriff=s Department (OCSD). Plaintiff worked in an office of the OCSD
as a secretary for defendant Peter Paravati, who was the Undersheriff
of defendant County of Oneida (County), and her job duties required her
to, inter alia, receive bail money delivered to her from the County jail
by correction officers, including James English, and to prepare bail monies
for deposit into the bail account. Plaintiff was also required to prepare
deposit slips for bail monies that she received.

     In July 2001, defendant Joseph Lisi, an OCSD lieutenant, conducted
an internal investigation into missing bail monies and, following that
investigation, plaintiff admitted to falsifying bail account records.
Plaintiff, who was by then represented by counsel, subsequently entered
into an agreement with the Oneida County District Attorney=s office
pursuant to which she resigned her position effective July 16, 2001 and
paid $16,827.74 to the County. That payment represented the amount of
the shortfall in the County=s bail account calculated by defendant Patricia
Copperwheat, an OCSD account supervisor. In exchange for her resignation
and the payment, plaintiff was allowed toCand ultimately didCplead guilty
to one count of official misconduct, a class A misdemeanor (Penal Law
' 195.00 [1]). Defendants Daniel Middaugh, the Sheriff of the County,
Paravati, the County and Copperwheat (collectively, County defendants)
moved for an order dismissing the amended complaint against them pursuant
to CPLR 3211 and CPLR 3212. Defendant estate of James English also moved
for summary judgment dismissing the amended complaint against it pursuant
to CPLR 3212, while defendant Lisi made a separate motion seeking an order
dismissing the amended complaint against him pursuant to CPLR 3211 and
CPLR 3212. Supreme Court granted the motions based on, inter alia, its
conclusion that the action is barred by the doctrines of res judicata
and collateral estoppel because an action that plaintiff had commenced
in the United States District Court against Middaugh, Paravati, English,
Lisi and the County was previously determined on the merits against
plaintiff. We conclude that those doctrines are inapplicable here, but
we affirm parts of the order and judgment on other grounds (see generally
Parochial Bus. Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, 545-546).

      With respect to res judicata, i.e., claim preclusion, we note that
A >a valid final judgment bars future actions between the same parties
on the same cause of action= (Parker v Blauvelt Volunteer Fire Co., 93
NY2d 343, 347 [1999]). >As a general rule, Aonce a claim is brought to
a final conclusion, all other claims arising out of the same transaction
or series of transactions are barred, even if based upon different theories
or if seeking a different remedy@ = (id., quoting O=Brien v City of Syracuse,
54 NY2d 353, 357 [1981]). Thus, res judicata applies >. . . to issues
which were or could have been raised in the prior [action]= (Matter of
Eagle Ins. Co. v Facey, 272 AD2d 399, 400 [2000])@ (Zayatz v Collins,
48 AD3d 1287, 1289; see Matter of Hunter, 4 NY3d 260, 269). Dismissal
of an action by a federal court, however, does not have res judicata effect
when the federal court declines to exercise its pendent jurisdiction over
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                                                                CA 13-01332

related state law claims, or otherwise dismisses those claims without
prejudice (see McLearn v Cowen & Co., 60 NY2d 686, 688; Britt v Buffalo
Mun. Hous. Auth., 109 AD3d 1195, 1196; cf. Troy v Goord, 300 AD2d 1086,
1087).

     Applying those rules here, we conclude that res judicata does not
bar the state action. The District Court=s decision in the federal action
specifically states that the Court was declining supplemental, i.e.,
pendent, Ajurisdiction over plaintiff=s state law claims.@ We further
conclude that the County=s Atransactional analysis approach@ to this issue
is without merit (see generally Hunter, 4 NY3d at 269).

     Collateral estoppel, by contrast, precludes a party Afrom
relitigating an issue that has already been decided against that party@
(Zayatz, 48 AD3d at 1289; see Tuper v Tuper, 34 AD3d 1280, 1282). ATwo
requirements must be met before collateral estoppel can be invoked. There
must be an identity of issue which has necessarily been decided in the
prior action and is decisive of the present action, and there must have
been a full and fair opportunity to contest the decision now said to be
controlling . . . The litigant seeking the benefit of collateral estoppel
must demonstrate that the decisive issue was necessarily decided in the
prior action against a party, or one in privity with a party . . . The
party to be precluded from relitigating the issue bears the burden of
demonstrating the absence of a full and fair opportunity to contest the
prior determination@ (Buechel v Bain, 97 NY2d 295, 303-304, cert denied 535
US 1096 [internal citations omitted]).

     Applying those rules here, we conclude that plaintiff is collaterally
estopped from asserting only that part of the 11th cause of action asserting
a claim for constructive discharge against the County. The 11th cause
of action has two components, i.e., a claim for constructive discharge,
and a claim for wrongful termination. AConstructive discharge occurs
when the employer, rather than acting directly, deliberately makes an
employee=s working conditions so intolerable that the employee is forced
into an involuntary resignation@ (Morris v Schroder Capital Mgt. Intl.,
7 NY3d 616, 621-622 [internal quotation marks omitted]; see Thompson v
Lamprecht Transp., 39 AD3d 846, 848) and, inasmuch as the District Court
concluded in the federal action that plaintiff had Aresigned because of
the plea agreement resulting from her official misconduct (falsifying
the bail account records),@ we conclude that the claim for constructive
discharge asserted in the 11th cause of action is barred by collateral
estoppel (see generally Buechel, 97 NY2d at 303-304). We further conclude
that the part of the 11th cause of action asserting a claim for wrongful
termination is not barred by collateral estoppel. That claim is premised
upon the theory that plaintiff was coerced into resigning, and A[a]
resignation under coercion or duress is not a voluntary act and may be
nullified@ (Matter of Mangee [Mamorella], 239 AD2d 892, 892; see Matter
of Gould v Board of Educ. of Sewanhaka Cent. High Sch. Dist., 81 NY2d
446, 451). The question whether plaintiff was coerced into resigning
was not fully litigated in the federal action, and thus the doctrine of
collateral estoppel does not apply to the claim for wrongful termination
(cf. Buechel, 97 NY2d at 303-304).
                                   -4-                                 459
                                                               CA 13-01332

     We nevertheless affirm parts of the order and judgment on alternative
grounds that the court rejected (see Parochial Bus. Sys., 60 NY2d at
545-546; Cataract Metal Finishing, Inc. v City of Niagara Falls, 31 AD3d
1129, 1130). We agree with the County defendants to the extent that they
contend that plaintiff=s failure to serve a notice of claim on the County
requires dismissal of the tort claims against the County, including the
claim for wrongful termination, and the negligence claims against Paravati
and Copperwheat (see County Law ' 52 [1]; General Municipal Law ' 50-e;
Csaszar v County of Dutchess, 95 AD3d 1009, 1010). We further conclude
that the cause of action for intentional infliction of emotional distress
should be dismissed as time-barred (see CPLR 215 [3]), and that plaintiff=s
constitutional tort claims fail to state a cause of action (see Martinez
v City of Schenectady, 97 NY2d 78, 83-84; cf. Civil Service Law ' 75-b).
 We also dismiss both plaintiff=s cause of action for breach of her
employment contract on the ground that plaintiff failed to proceed pursuant
to her collective bargaining agreement (see Matter of Board of Educ.,
Commack Union Free Sch. Dist. v Ambach, 70 NY2d 501, 508, cert denied
485 US 1034), and plaintiff=s cause of action against Middaugh, Paravati,
Lisi and Copperwheat for tortious interference with plaintiff=s employment
contract (see Lama Holding Co. v Smith Barney Inc., 88 NY2d 413, 424-425;
LaBarte v Seneca Resources Group, 285 AD2d 974, 977). Plaintiff failed
to state a claim for prima facie tort (see generally Posner v Lewis, 18
NY3d 566, 570 n 1; Mancuso v Allergy Assoc. of Rochester, 70 AD3d 1499,
1501), and we further conclude that plaintiff=s negligence causes of action
should be dismissed (see Ciapa v Misso, 103 AD3d 1157, 1158; Alabisi v
Bonda, 262 AD2d 948, 948), and that the punitive damages claim should
be dismissed as against all defendants except for the estate of James
English (see Rocanova v Equitable Life Assur. Socy. of U.S., 83 NY2d 603,
613, 616-617; cf. Englert v Schaffer, 61 AD3d 1362, 1363).

     In sum, only plaintiff=s seventh and eighth causes of action, which
allege that Middaugh, Paravati, and the County breached their agreement
with plaintiff not to publish information about plaintiff=s official
misconduct, and plaintiff=s causes of action against the estate of James
English remain for trial, and we therefore modify the order and judgment
accordingly.




Entered:   August 8, 2014                          Frances E. Cafarell
                                                   Clerk of the Court
