The following papers read on this motion:Notice of Motion and Affidavits XMemorandum of Law in Support of Motion XAffirmation in Opposition XMemorandum of Law in Support of Opposition XReply Affirmation XMemorandum of Law in Support of Reply XThe petitioners move for leave to file a late notice of claim, and judgment declaring that the petitioners should not have been required to file a notice of claim pursuant to County Law §52 under the public interest exception, and that the Notice of Claim filed by petitioners on March 22, 2017 is deemed timely filed nunc pro tunc under General Municipal Law §50-e(5). The respondent submits a verified answer, opposition to the petitioner, and a Memorandum of Law in support of the opposition. The petitioner submits a reply affirmation, and a reply Memorandum of Law.The petitioners, residents of Nassau County, with the exception of Helen Ebbert, previously moved, by way of complaint, in action entitled Susan Chodkowski, Helen Ebbert, Gary Volpe, Matthew Sarter, Wendy Neal, Deborah Pedenzin, Rosanna Lauro, Danielle Davidson and all others similarly situated v. County of Nassau, Nassau County Police Department, Nassau County Civil Service Commission, bearing Case Number, 16-CV-5770, in the United States District Court, Eastern District of New York, before the Hon. J. Feuerstein and Hon. M.J. Brown, (hereinafter referred to as the ‘Federal Action”), alleging wage violations against the respondent herein, including allegations that the respondent violated the Fair Labor Standards Act, (“FLSA”), and the New York Labor Law, (“NYLL”). The petitioners alleged that the respondent failed to pay petitioners overtime on contractually obligated, so-called Supplemental Days, failed to pay petitioners overtime for time worked as a result of a mutual or shift swap, failed to pay overtime for time spent attending legally mandated in-house training, and that these wage violations constituted a breach of two settlement agreements in prior federal litigations.The Hon. Feuerstein, by way of Memorandum and Order dated November 30, 2017, granted the respondent’s motion and dismissed the petitioners’ NYLL Claims for failure to file a notice of claim, (hereinafter referred to as the “Federal Order”). The Federal Order directly addressed whether the petitioners were required to file a notice of claim pursuant to County Law §52, whether the public interest exception applied, and whether the notice of claim filed by the petitioners on March 22, 2017 could be deemed timely filed. The Federal Order, in its analysis, provided that “[t]he New York Court of Appeals has recognized an exception to the notice of claim requirement when an action is not brought merely to enforce a private right, but rather, to vindicate a public interest,” citing Turner v. Cty. of Suffolk, 955 F. Supp. 175, citing Union Free School Dist. No. 6 of Towns of Islip & Smithtown v. New York State Human Rights Appeal Bd., 35 NY2d 371, and “[g]enerally whether this exception applies turns on whether the action ‘seek[s] only enforcement of private rights and duties ‘versus a suit’ in which it is sought to vindicate a public interest,’” citing Onondaga Crys. Bd. of Co-op Educ. Servs. v. Sweeney, 89 NY2d 395, 400. The Court stated that “[t]he thrust of Plaintiffs’ argument as to why this action falls within the narrow confines of the public interest exception is premised upon the NYLL’s public policy statement concerning imposition of minimum wage standards,” and in its analysis found that “the public interest exception is inapplicable and a Notice of Claim was required to be filed as a condition precedent to bringing claims pursuant to the NYLL.” The Court further provided the “[p]laintiffs assert that their failure to file a timely Notice of Claim was “cured…by filing Notices of Claim on March 22, 2017…[t]his lawsuit was filed on October 17, 2016. Plaintiffs filed their Notices of Claim approximately five (5) months after commencing this action. However, the plain language contained in New York County Law §52 (which incorporates by reference General Municipal Law §50-(e)) requires that a Notice of Claim be filed as a condition precedent to filing a lawsuit.” The Court further provided that ‘[a]lthough some courts have permitted a Plaintiff to cure this defect by filing an amended complaint, such leave is generally premised on the fact that the notice of claim requirement had been met…[h]ere, in contrast, Plaintiffs never timely filed their Notice of Claim. As the Court has already found, the March 22, 2017 filing was untimely since it was made after the commencement of this action. Therefore, the leniency afforded to plaintiffs whose sole failure can be characterized as merely a ‘technical’ violation of §50-i (because the Notice of Claim itself was timely filed) is not warranted, where, as here, Plaintiffs both failed to timely file their Notice of Claim and comply with the pleading requirements of §50-i. This independent failure thus provides an alternative ground for dismissing Plaintiffs’ NYLL claims.” (emphasis added). The Court, by way of the Federal Order, concluded, in relevant part, that plaintiff’s NYLL claims were dismissed.It is well established that when a party has had a full and fair opportunity to litigate an issue, that party is collaterally estopped from litigating the same issue in another proceeding. (Montoya v. JL Astoria Sound, Inc., 92 AD3d 736). “In order for collateral estoppel to apply, two elements must be established: (1) that ‘the identical issue was necessarily decided in the prior action and is decisive in the present action’; and (2) that the precluded party ‘must have had a full and fair opportunity to contest the prior determination.’” (Id., citing D’Arta v. New York Cent. Mut. Fire Ins. Co., 76 NY2d 659). Issue preclusion is only applicable if there is an identity of issue which was necessarily decided in the prior action, and decisive in the present action, where there was a full and fair opportunity to contest the purported controlling decision. (Schwartz v. Public Adm’r, 24 NY2d 65).“Generally, whether a party has had a full and fair opportunity to contest a prior decision ‘requires consideration of the realities of the litigation’…[and] the fundamental inquiry is whether relitigation should be permitted in a particular case in light of what are often competing policy considerations, including fairness to the parties, conservation of resources of the court and the litigants, and the societal interests in consistent and accurate results. No rigid rules are possible, because even those factors may vary in relative importance depending on the nature of the proceedings.” (Marx v. Burke, 2007 WL 2174774, citing Staatsburg Water Co. v. Staatsburg Fire Dist., 72 NY2d 147, quoting Gilberg v. Barbieri, 53 NY2d 285).Clearly the arguments set forth by petitioners are barred by the doctrine of collateral estoppel. Here, as in Federal action, the issue of whether the petitioners were required to file a notice of claim pursuant to County Law §52 under the public interest exception, and whether the notice of claim filed by the petitioners on March 22, 2017 could be deemed timely filed was litigated and decided, and the parties had a full and fair opportunity to be heard and to contest the issues. The Federal Order held that the petitioners were required to file a notice of claim, that the Marh 22, 2017 filing of the notice of claim was untimely, and dismissed the petitioners’ NYLL claims.In any event, it is also well settled that “[a]s a general rule, once 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”. (Breslin Realty Development Corp. v. Shaw, 72 AD3d 258). “The proponent of the doctrine of collateral estoppel need not demonstrate that the particular theory in support of a cause of action was actually raised and litigated in the prior action or proceeding”. (Id.) Additionally, contrary to the petitioner’s contention, the Federal Court’s order was clear, and silence as to whether the claim was dismissed with or without prejudice connotes it was dismissed with prejudice. “A district court’s dismissal under the rule 12(b)(6) is, of course, with prejudice unless it specifically orders dismissal without prejudice.” (In re General Motors LLC Ignition Switch Litigation, 275 F. Supp. 3d).In light of the foregoing, the petition is denied and therefore, the proceedings herein are dismissed.Dated: April 9, 2018
