Opinion
April 19, 1993
Appeal from the Supreme Court, Queens County (Leviss, J.).
Ordered that on the court's own motion, the appellant's notice of appeal is treated as an application for leave to appeal, and leave to appeal is granted (see, CPLR 5701 [c]); and it is further,
Ordered that the order is modified, on the law, by deleting the provisions thereof which denied those branches of the cross motion which were to dismiss the petitioner's sixth and seventh causes of action in their entirety and substituting therefor provisions granting those branches of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
The doctrine of collateral estoppel precludes a party from relitigating "'an issue which has previously been decided against him in a proceeding in which he had a fair opportunity to fully litigate the point'" (Kaufman v Lilly Co., 65 N.Y.2d 449, 455, quoting Gilberg v Barbieri, 53 N.Y.2d 285, 291; see, Schwartz v Public Adm'r of County of Bronx, 24 N.Y.2d 65, 69). In a prior Federal action between the parties which was dismissed, the United States District Court for the Eastern District of New York applied New York State law in determining whether the petitioner had a liberty or property interest created or recognized by State law (see, Board of Regents v Roth, 408 U.S. 564, 570; Matter of Economico v Village of Pelham, 50 N.Y.2d 120, 125), and granted the appellant's motion to dismiss the petitioner's cause of action alleging violations of its due process rights under the Federal and State Constitutions. That decision necessarily determined that, under the circumstances of this case, the petitioner has no liberty or property interest created or recognized by State law. Therefore, relitigation of this issue is barred by collateral estoppel.
Furthermore, we have held that the Equal Protection Clause in the New York State Constitution (NY Const, art I, § 11) is no broader in coverage than its Federal counterpart, and this equation with the Federal provision extends to the requirement of "State action" in order for the Equal Protection Clause to be applicable (see, Under 21, Catholic Home Bur. for Dependent Children v City of New York, 65 N.Y.2d 344, 360, n 6; Matter of Esler v Walters, 56 N.Y.2d 306, 313-314; Dorsey v Stuyvesant Town Corp., 299 N.Y. 512, 530-531, cert denied 339 U.S. 981). The petitioner simply seeks to relitigate the very same issue which was decided adversely to it in Federal court. Accordingly, based on the principle of collateral estoppel, the petitioner's equal protection claim under the State Constitution should also be dismissed.
We reject the appellant's contention that this proceeding is untimely. The dismissal of the pendent State law claims in the Federal action because the Federal claims were insubstantial triggered the protection of CPLR 205 (a), thereby affording the petitioner six months within which to bring another action in State court. This proceeding was timely commenced within six months after the Federal action was dismissed. Mangano, P.J., Bracken, Sullivan and Lawrence, JJ., concur.