Opinion
June 23, 1998
Appeal from the Supreme Court, New York County (Marylin Diamond, J.).
The instant action is merely the latest in a long series of challenges to the validity of the Police Officers' Variable Supplements Fund and the Police Superior Officers' Variable Supplements Fund, all of which matters were previously resolved unfavorably to plaintiff's, retired New York City police officers with less than 20 years accredited service, or parties with whom they were in privity ( see, Gagliardo v. Dinkins, 89 N.Y.2d 62; Ballentine v. Koch, 89 N.Y.2d 51; Poggi v. City of New York, 109 A.D.2d 265, affd 67 N.Y.2d 794; Matter of Bergamine v. Patrolmen's Benevolent Assn., 202 A.D.2d 201, lv denied 83 N.Y.2d 758; Castellano v. Board of Trustees, 937 F.2d 752, cert denied 502 U.S. 941; Castellano v. City of New York, 946 F. Supp. 249, affd 142 F.3d 58). "It is fundamental that a judgment in a prior action is binding not only on the parties to that action, but on those in privity with them" ( Green v. Santa Fe Indus., 70 N.Y.2d 244, 253), i.e., those with interests that were represented in the prior proceeding (see, supra), or who controlled the conduct of the prior action to further their own interests (see, supra, at 254). It is also fundamental that once an action has been resolved, all other claims arising out of the same transaction are also barred even if based upon different theories or seeking different remedies ( see, O'Brien v. City of Syracuse, 54 N.Y.2d 353, 357-358). While plaintiffs could have raised additional claims in one or more of the foregoing actions, they opted not to do so, and they are barred by res judicata from doing so now. In any event, there is no merit to plaintiffs' argument that, as retired police officers, they are not represented by the Patrolmen's Benevolent Association (PBA) and therefore are not bound by the PBA's waiver of article V (§ 7) of the New York State Constitution. The relevant PBA waiver is its agreement to the 1970 legislation creating the Variable Supplements Fund as a benefit scheme outside the purview of section 7 of article V ( see, Ballentine v. Koch, supra, 89 N.Y.2d, at 56, 58), which took place prior to plaintiffs' retirement. We have considered plaintiffs' other arguments and find them to be without merit.
Plaintiffs' brief states that all plaintiffs retired after 1970.
Concur — Sullivan, J. P., Milonas, Ellerin, Nardelli and Mazzarelli, JJ.