SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
658
CA 14-02081
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND DEJOSEPH, JJ.
IN THE MATTER OF PATRICIA DEROSA,
PETITIONER-APPELLANT,
V MEMORANDUM AND ORDER
PAUL DYSTER, AS MAYOR OF CITY OF NIAGARA FALLS,
AND CITY OF NIAGARA FALLS,
RESPONDENTS-RESPONDENTS.
LAW OFFICES OF W. JAMES SCHWAN, BUFFALO (W. JAMES SCHWAN OF COUNSEL),
FOR PETITIONER-APPELLANT.
CRAIG H. JOHNSON, CORPORATION COUNSEL, NIAGARA FALLS (CHRISTOPHER M.
MAZUR OF COUNSEL), FOR RESPONDENTS-RESPONDENTS.
Appeal from a judgment (denominated order) of the Supreme Court,
Niagara County (Richard C. Kloch, Sr., A.J.), entered March 4, 2014 in
a proceeding pursuant to CPLR article 78. The judgment granted the
motion of respondents to dismiss the petition and dismissed the
petition.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.
Memorandum: Petitioner appeals from a judgment dismissing her
CPLR article 78 petition seeking to direct respondents to provide her
with family health insurance coverage. This is the second proceeding
petitioner has commenced pursuant to CPLR article 78 seeking such
health insurance coverage from respondents. Her prior petition was
granted by Supreme Court, which determined that petitioner was
entitled to family health insurance coverage provided by respondents
at no cost to her pursuant to a Memorandum of Understanding between
respondent City of Niagara Falls and petitioner’s union. Our
modification of the judgment in the prior appeal was on grounds not
relevant herein (Matter of DeRosa v Dyster, 90 AD3d 1470). We
conclude that the instant petition, which seeks identical relief based
on the same provisions in the Memorandum of Understanding, “is
precisely the type of repetitive litigation the doctrine of claim
preclusion is designed to avoid” (Matter of Reilly v Reid, 45 NY2d 24,
31), and it was properly dismissed based on the doctrine of res
judicata (see O’Brien v City of Syracuse, 54 NY2d 353, 357; Barrett v
Setright, 193 AD2d 1094, 1095, lv denied 82 NY2d 662; Israel v Walter
-2- 658
CA 14-02081
Kaye Assoc., 145 AD2d 467, 468-469, lv denied 74 NY2d 607).
Entered: June 12, 2015 Frances E. Cafarell
Clerk of the Court