Opinion
05-11-2017
Warmann E. DIPOUMBI, Plaintiff–Appellant, v. NEW YORK CITY POLICE DEPARTMENT, et al., Defendants–Respondents.
The Law Office of Karen Winner, New York (Karen F. Winner of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Diana Lawless of counsel), for respondents.
The Law Office of Karen Winner, New York (Karen F. Winner of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Diana Lawless of counsel), for respondents.
Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered March 8, 2016, which, after the submission of trial memoranda and oral argument, dismissed the complaint without trial, unanimously affirmed, without costs.
Plaintiff has conceded the nonviability of his claim for prima facie tort.
Plaintiff's remaining claims were barred by the doctrine of res judicata (regardless of whether the state or federal tests are applied), as they were dismissed on the merits in a prior federal action (see Dipoumbi v. City of New York, 2011 WL 5966461, 2011 U.S. Dist. LEXIS 137206 [S.D.N.Y. Nov. 28, 2011] ; Insurance Co. of State of Pa. v. HSBC Bank USA, 10 N.Y.3d 32, 38, 852 N.Y.S.2d 812, 882 N.E.2d 381 [2008] ; Matter of People v. Applied Card Sys., Inc., 11 N.Y.3d 105, 122, 863 N.Y.S.2d 615, 894 N.E.2d 1 [2008], cert. denied 555 U.S. 1136, 129 S.Ct. 999, 173 L.Ed.2d 292 [2009] ). Plaintiff's attempted collateral attack on the federal court order is not properly before this Court (see LaVigna v. Capital Cities/ABC, 245 A.D.2d 75, 76, 665 N.Y.S.2d 410 [1st Dept.1997] ).
In addition, plaintiff is bound by his then-counsel's withdrawal of all claims except prima facie tort earlier in the instant action. Even if counsel acted outside his actual authority, his actions are binding because he had apparent authority to withdraw these claims (see Hallock v. State, 64 N.Y.2d 224, 230–231, 485 N.Y.S.2d 510, 474 N.E.2d 1178 [1984] ).
All claims except false arrest and imprisonment should additionally be dismissed on the independent ground that they were not asserted in the notice of claim (see General Municipal Law § 50–e ; Scott v. City of New York, 40 A.D.3d 408, 409–410, 836 N.Y.S.2d 140 [1st Dept.2007] ; Wanczowski v. City of New York, 186 A.D.2d 397, 588 N.Y.S.2d 1011 [1st Dept.1992] ). This action does not fall within the "public interest" exception to the notice of claim requirement, as plaintiff alleges misconduct "related only to himself" and seeks "compensation for harm caused to him alone" (Sager v. County of Sullivan, 145 A.D.3d 1175, 1177, 41 N.Y.S.3d 443 [3d Dept.2016] ; accord Mills v. County of Monroe, 59 N.Y.2d 307, 312, 464 N.Y.S.2d 709, 451 N.E.2d 456 [1983], cert. denied 464 U.S. 1018, 104 S.Ct. 551, 78 L.Ed.2d 725 [U.S.1983] ).We have considered the remaining arguments and find them unavailing.
SWEENY, J.P., RICHTER, ANDRIAS, FEINMAN, KAHN, JJ., concur.