Admittedly, Plaintiff included a "cf." cite to Bielby v. Middaugh, 120 A.D.3d 896 (N.Y. App. Div. 2014), the most recent New York State authority on coerced resignation. (See Pl. Opp'n to Defs.' Mots. for Summ. J. at 27.)

To be clear, "the party seeking the benefit of the [collateral estoppel] doctrine ... bears the initial burden of demonstrating that there is privity." State v. Zurich Am. Ins. Co. , 106 A.D.3d 1222, 1223, 965 N.Y.S.2d 206, 208 (1st Dept. 2013) ; see also,Bielby v. Middaugh , 120 A.D.3d 896, 898, 991 N.Y.S.2d 813, 816 (4th Dept. 2014) ("The litigant seeking the benefit of collateral estoppel must demonstrate that the decisive issue was necessarily decided in the prior action against a party, or one in privity with a party.") (quoting Buechel v. Bain ); Davidson v. Am. Bio Medica Corp. , 299 A.D.2d 390, 391, 749 N.Y.S.2d 98, 99 (2d Dept. 2002) ("ABM [the party invoking collateral estoppel] failed to establish that the plaintiff was in privity with any of the parties involved in the Maryland action."). The New York Court of Appeals has indicated that it can be difficult to determine whether such privity exists, and that doubts should be resolved against the application of the doctrine:

Although plaintiff's complaint in state court provided more factual detail than her federal complaint, that additional detail either pertained to claims that were dismissed in the federal action, or—if they were not raised in that action—could have been raised at that time (see generallyHunter , 4 N.Y.3d at 269, 794 N.Y.S.2d 286, 827 N.E.2d 269 ). To the extent that the complaint in this action asserts claims not contained in the federal complaint—i.e., claims that defendants retaliated by constructively discharging her from employment—we conclude that those claims are nonetheless precluded inasmuch as they are predicated on factual allegations that either were raised or could have been raised during the federal action (seeBradshaw , 200 A.D.3d at 554, 155 N.Y.S.3d 335 ; see generallyBielby v. Middaugh , 120 A.D.3d 896, 899, 991 N.Y.S.2d 813 [4th Dept. 2014] ). Indeed, in her complaint for this action, plaintiff does not allege any wrongful conduct of defendants that occurred after the commencement of the federal action (cf.UBS Sec. LLC v. Highland Capital Mgt., L.P. , 86 A.D.3d 469, 476, 927 N.Y.S.2d 59 [1st Dept. 2011] ).

We deny the petition in part and grant the cross petitions in part. Contrary to petitioners' contentions, the determinations that complainant was subjected to a hostile work environment (see Matter of Father Belle Community Ctr. v New York State Div. of Human Rights, 221 AD2d 44, 50-51, lv denied 89 NY2d 809), that petitioners Aronica and Giangreco were informed of the sexually inappropriate conduct directed toward complainant and condoned that conduct (see Matter of State Div. of Human Rights v St. Elizabeth's Hosp., 66 NY2d 684, 687; Father Belle Community Ctr., 221 AD2d at 53), and that complainant was constructively discharged from employment (see Morris v Schroder Capital Mgt. Intl., 7 NY3d 616, 621-622; Bielby v Middaugh, 120 AD3d 896, 899) are supported by substantial evidence (see generally Matter of State Div. of Human Rights [Granelle], 70 NY2d 100, 106; 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180-182). That complainant may have used sexually inappropriate language or engaged in sexually inappropriate conduct with a longtime personal friend who worked in the same office does not preclude a finding of hostile work environment inasmuch as the relevant inquiry is "whether [complainant] welcomed the particular conduct in question from the alleged harasser[s]" (Swentek v USAir, Inc., 830 F2d 552, 557).

The breach of contract claims are no t barred by res judicata because Judge Larimer expressly declined to exercise supplemental jurisdiction over them (Bielby v. Middaugh, 120 A.D.3d 896, 898 [4th Dept. 2014]). The elements of a breach of contract claim are "the existence of a contract, the plaintiffs performance under the contract, the defendant's breach of that contract, and resulting damages" (Niagara Foods, Inc., v. Ferguson Elec. Service Co., Inc. (111 AD3c(1374, 1376 [4thDept. 2013]). The only parties to the 2006 Settlement Agreement allegedly breached are plaintiff and B&I.

t claimant's causes of action for sexual harassment, retaliation, and a hostile work environment were "necessarily decided" in Federal court by Judge Furman (see Kim v Goldberg, Weprin, Finkel, Goldstein, LLP, 120 AD3d 18, 24 [2d Dept. 2015] [internal quotation marks omitted]), and movant is barred from asserting such causes of action in this Court. The claims asserted in movant's proposed claim are the same claims asserted in the Federal Court action (Proposed Claim ¶ 2; Nunez v N.Y. State Dept. of Corrs. and Community Supervision, 2015 WL 4605684, at *18 [SD NY, July 31, 2015, No. 14-CV-6647, Furman, J.]; Nunez v N.Y. State Dept. of Corrs. and Community Supervision, 2017 WL 3475494, at *5 [SD NY, No. 14-CV-6647, Furman, J.]). It is clear that Judge Furman, in assessing movant's causes of action under the NYSHRL, exercised pendent jurisdiction over the causes of action for harassment, retaliation, and a hostile work environment (Troy v Goord, 300 AD2d 1086, 1086 [4th Dept. 2002]; see Bielby v Middaugh, 120 AD3d 896, 898 [4th Dept. 2014]). He concluded that movant failed to state a cause of action, or raise a triable issue of fact as to movant's causes of action for harassment, retaliation and a hostile work environment under all applicable laws. Where, as here "a [proposed] new claim constitutes the same cause of action as the formerly litigated claim [as] they both arise out of the same transaction or occurrence or series of transactions or occurrences[,]" movant is barred from relitigating the causes of action decided in the formerly litigated action, even where the new claim is premised on a new legal theory (see Troy v Goord, 300 AD2d at 1086). Accordingly, the Court denies movant's motion for permission to file a late claim as to the causes of action for harassment, retaliation, and a hostile work environment, as such claims are barred by the doctrine of res judicata.

Since the prior federal court actions were dismissed for failure to state a claim under federal law, and the federal court declined to exercise supplemental jurisdiction over the pendent state-law causes of action, and thus not on the merits, the causes of action asserted here against the Williams defendants, save NBUF, as well as the causes of action asserted against Spiegelman, are not barred by res judicata. See Bielby v Middaugh, 120 AD3d 896 (4th Dept. 2014).

Constructive discharge occurs when the employer, rather than acting directly, deliberately makes an employee's working conditions so intolerable that the employee is forced into an involuntary resignation. Bielby v. Middaugh, 120 A.D.3d 896, 899 (4th Dept. 2014), quoting Morris v. Schroder Capital Mgt. Intl., 7 N.Y.3d 616, 621-622 (2006) (internal quotation marks omitted).