UNPUBLISHED OPINION

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ''SUMMARY ORDER''). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 27^th day of August, two thousand twenty-one.

Appeal from a judgment of the United States District Court for the Western District of New York (Vilardo, J., McCarthy, M.J.).

Appearing for Appellant: Sunanda Kern, pro se, West Seneca, N.Y.

Appearing for Appellees: Barbara D. Underwood, Solicitor General, Jeffrey W. Lang, Deputy Solicitor General, Laura Etlinger, Assistant Solicitor General, for Letitia James, Attorney General of the State of New York, Albany, N.Y.

Present: JON O. NEWMAN, ROSEMARY S. POOLER, RAYMOND J. LOHIER, JR., Circuit Judges.

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

Sunanda Kern, pro se, appeals from the dismissal of her 42 U.S.C. § 1983 complaint as barred by res judicata. Kern sued Linda Joyce, the director of the New York State Central Register of Child Abuse and Maltreatment ("Central Register") in her official capacity, and Sheila Poole, the acting Commissioner of the New York State Office of Children and Family Services in her official capacity, claiming a violation of her due process rights in a child neglect proceeding before an administrative law judge ("ALJ"). She sought to vacate a finding that she had mistreated her daughter and to seal her record with the Central Register. The defendants moved to dismiss, arguing that Kern's action was precluded by a previous decision of the New York State Appellate Division, which had reviewed and confirmed the ALJ's decision in an Article 78 proceeding. A magistrate judge recommended granting the motion to dismiss, reasoning that Kern's due process argument arose from the same transaction or occurrence as her objections to the ALJ's decision and that she could have raised the argument in the Article 78 proceeding. The district court adopted that reasoning and dismissed Kern's complaint as barred by res judicata. Kern appeals. We assume the parties' familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

We review de novo a district court's dismissal of a complaint on the ground of res judicata. Soules v. Conn., Dep't of Emergency Servs. & Pub. Prot., 882 F.3d 52, 55 (2d Cir. 2018).

Because Kern's due process claim was cognizable in the Article 78 proceeding and arose from the same factual grouping as her insufficiency of the evidence claim in that proceeding, we affirm. Under the Full Faith and Credit Act, 28 U.S.C. § 1738, a federal court must apply New York res judicata law to New York state court judgments. See Hoblock v. Albany Cnty. Bd. of Elections, 422 F.3d 77, 93 (2d Cir. 2005). In New York, res judicata bars an action if "(1) the previous action involved an adjudication on the merits; (2) the previous action involved the plaintiffs or those in privity with them; [and] (3) the claims asserted in the subsequent action were, or could have been, raised in the prior action." Monahan v. N.Y.C. Dep't of Corr., 214 F.3d 275, 285 (2d Cir. 2000). Under New York's "transactional approach to res judicata," "if claims arise out of the same factual grouping they are deemed to be part of the same cause of action and the later claim will be barred without regard to whether it is based upon different legal theories or seeks different or additional relief." Davidson v. Capuano, 792 F.2d 275, 278 (2d Cir. 1986) (internal quotation marks omitted). Therefore, "a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action." Giannone v. York Tape &Label, Inc., 548 F.3d 191, 193 (2d Cir. 2008) (internal quotation marks omitted).

Res judicata applies here. Kern does not contest that the Article 78 proceeding was an adjudication on the merits. In any event, the Appellate Division considered and ruled on her challenge to the sufficiency of the evidence supporting the ALJ's decision. Kern also does not contest that there was privity between the parties; such a challenge would be meritless, anyway. "[T]he principle of privity bars relitigation of the same cause of action against a new defendant known by a plaintiff at the time of the first suit where the new defendant has a sufficiently close relationship to the original defendant to justify preclusion." Cent. Hudson Gas &Elec. Corp. v. Empresa Naviera Santa S.A., 56 F.3d 359, 367-68 (2d Cir. 1995). Here, Joyce, as director of the Central Register, is in privity with the Central Register. See O'Connor v. Pierson, 568 F.3d 64, 71 (2d Cir. 2009) (explaining that official capacity suits are effectively suits against the government entity of which the officer is an agent, and thus privity exists between the agency and agency officials). Although the Office of Children and Family Services was not named as a party in the Article 78 proceeding, because the Central Register is a division of the Office, see Nicholson v. Scoppetta, 344 F.3d 154, 158-59 (2d Cir. 2003), a sufficiently close relationship exists and the two share essentially identical interests in the litigation, see Chase Manhattan Bank, N.A. v. Celotex Corp., 56 F.3d 343, 345 (2d Cir. 1995) (res judicata bars non-parties "when the interests involved in the prior litigation are virtually identical to those in later litigation"). Accordingly, Poole, sued in her official capacity, is also in privity with the Central Register.

As to the third element of res judicata, Kern's argument that she could not have raised a due process claim-based on her contention that the State submitted caseworker notes to the ALJ but these notes were not provided to her-is unavailing because such a claim is cognizable in an Article 78 proceeding. See N.Y.C.P.L.R. § 7803(3) (listing "whether a determination was made in violation of lawful procedure" as a valid question that may be raised in an Article 78 proceeding); Walton v. N.Y. State Dep't of Corr. Servs., 8 N.Y.3d 186, 194 (2007) (constitutional challenge to administrative determination properly brought under Article 78). Indeed, such constitutional claims based on concealed evidence have previously been raised in Article 78 proceedings before the Appellate Division. See, e.g., Matter of Seon v. N.Y. State Dep't of Motor Vehicles, 74 N.Y.S.3d 20, 22-23 (1st Dep't 2018) (although not ruled on by the court because it decided on the basis of insufficient evidence, petitioner raised claims that his due process rights were violated because admitted evidence was not provided to him prior to or during the hearing before the ALJ), rev'd on other grounds, 35 N.Y.3d 1032 (2020); Matter of Hillard v. Coughlin, 593 N.Y.S.2d 573, 57576 (3d Dep't 1993) (reversing administrative determination where petitioner's due process rights were violated because he was denied access to a videotape viewed by the hearing officer). Therefore, her due process claim could have been raised in the Article 78 proceeding, and the district court correctly dismissed her complaint as barred by res judicata.

Kern asserts that because she was not given the case worker notes, she was unable to "defend" herself before the ALJ, she could not raise her due process argument in the Article 78 proceeding, and res judicata should not have barred her from raising it in the district court. Her argument is unavailing. She alleged in her complaint that she did not learn of the notes until after she sent her brief to the Appellate Division. However, the documents she attached to her complaint show that there was a full evidentiary hearing before the ALJ, and the caseworker progress notes were an exhibit in that hearing, where she was represented by counsel. Kern's assertion that the evidence was somehow hidden from her is contradicted by those attachments. See Hirsch v. Arthur Andersen &Co., 72 F.3d 1085, 1095 (2d Cir. 1995) (affirming dismissal of a complaint where plaintiff's "attenuated allegations" were "contradicted . . . by facts of which [the Court] may take judicial notice").

The fact that the Appellate Division declined to consider her new arguments does not preclude the application of res judicata. Under New York law, refusal to consider a claim based on a failure to raise that claim in a prior proceeding qualifies as a decision on the merits for res judicata purposes. See Taylor v. N.Y.C. Transit Auth., 433 F.2d 665, 668 (2d Cir. 1970). Here, because her sufficiency of the evidence claim in the Article 78 proceeding and due process claim in her federal complaint arose out of the same "factual grouping," Davidson, 792 F.2d at 278, res judicata applies and the district court properly dismissed her complaint, see Soules, 882 F.3d at 55 ("Res judicata bars re-litigation if . . . the claims asserted in the subsequent action were, or could have been, raised in the prior action." (alteration and internal quotation marks omitted)); O'Brien v. City of Syracuse, 54 N.Y.2d 353, 357 (1981) (res judicata bars "all other claims arising out of the same transaction or series of transactions . . . even if based upon different theories or if seeking a different remedy").

Kern further asserts that res judicata does not apply to the Article 78 proceeding because claims for damages are inappropriate in Article 78 proceedings. Generally, an Article 78 proceeding does not preclude a subsequent § 1983 proceeding because damages sought pursuant to § 1983 typically are not available in Article 78 proceedings. See Davidson, 792 F.2d at 278-80. But Kern did not seek damages in the district court; instead, she sought the same relief that would have been available in the Article 78 proceeding-an order vacating the determination to retain the report of maltreatment, amending the report to "unfounded" and sealing the report. Accordingly, the fact that the prior proceeding was an Article 78 review of an administrative determination does not foreclose the application of res judicata to Kern's § 1983 claims. See, e.g., Burka v. N.Y.C. Transit Auth., 32 F.3d 654, 658 (2d Cir. 1994).

We have considered all of Kern's remaining arguments and find them to be without merit. Accordingly, the judgment of the district court hereby is AFFIRMED.