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March 12, 2010

Settlement of a lawsuit “with prejudice” bars a second action based on similar allegations involving the same parties

Settlement of a lawsuit “with prejudice” bars a second action based on similar allegations involving the same parties
Benjamin v New York City Dept. of Health, 57 AD3d 403

The Appellate Division dismissed the petition filed by Sislyn Benjamin alleging unlawful discrimination because a prior state court action containing the same claims set out in her petition was discontinued with prejudice by stipulation of the parties and thus constitutes res judicata insofar as a judgment on the merits is concerned.

Benjamin sued the New York City Department of Health alleging it unlawfully discriminated against her because of her national origin and her disability resulting from an injury. In addition, Benjamin alleged she had suffered “a retaliatory firing” after she had filed her complaint.

The Appellate Division dismissed Benjamin’s petition, holding that the fact that an earlier determination of “no probable cause” by the New York City Commission on Human Rights involving other allegations of unlawful discrimination precluded her lawsuit now complaining of other acts unlawful discrimination – discrimination based on her national origin and disability resulting from a shoulder injury.

The court said that the Commission had previously conducted an investigation and determined that there was “no discrimination based on skin color, stress, gastric disorders or a peptic ulcer, and that the disciplinary action taken against [Benjamin] was based on substandard job performance.” Although Benjamin’s earlier complaint filed with Commission did not claim discrimination based on national origin and a physical disability, the Appellate Division concluded that “the instant claims are based on the same continuing allegedly discriminatory underlying conduct asserted in the Commission proceedings.” Accordingly, Appellate Division ruled the statutory election of remedies applied, citing Bhagalia v State, 228 A.D.2d 882.

In Bhagalia the Appellate Division held that Executive Law §297(9) bars a claimant from filling a second complaint alleging unlawful discrimination where “there exists a sufficient identity of issue between the present claim and the prior complaints” filed with the New York State Division of Human Rights.

As to Benjamin’s argument that she did not and could not have asserted a retaliatory firing claim before the Commission because she was not fired until after she had filed her complaint with the Commission, the court noted that the Commission had investigated her claim that she had been subjected to retaliatory discipline as a result of her filing a complaint of unlawful discrimination and it to be without merit.

In the words of the Appellate Division, Benjamin’s allegations with respect to retaliation “was simply the culmination of the disciplinary process that the Commission found to have been based on [her] substandard work performance.”

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