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September 13, 2017

The Doctrine of Collateral Estoppel does not bar litigating claims involving the same parties that were not previously considered in prior administrative or judicial actions


The Doctrine of  Collateral Estoppel does not bar litigating claims involving the same parties that were not previously considered in prior administrative or judicial actions
Mehulic v New York Downtown Hosp., 2017 NY Slip Op 06416, Appellate Division, First Department

Following a number of adverse administrative rulings, Surana Mehulic brought an Article 78 action against her former employer, New York Downtown Hospital [Hospital] alleging it had impermissibly retaliated against her for whistle blowing. Supreme Court dismissed her amended complaint, ruling that Mehulic's retaliation claim under Labor Law §741 "is completely barred by [the doctrine of] collateral estoppel".*

The Appellate Division unanimously reversed the Supreme Court's ruling explaining that with respect to the earlier administrative determinations "there was no express or implied ruling that [Hospital], in terminating Mehulic, "had impermissibly retaliated against her for whistle blowing."

The court explained that the issue of whether the Hospital terminated Mehulic because she reported inadequate medical care to her supervisors, and later, the Department of Health was not at issue in the prior administrative proceedings and related article 78 proceeding. Accordingly, said the Appellate Division, the issue of alleged retaliation "was not necessarily decided in the prior proceedings."

The earlier proceedings were initiated by the Department of Health's Office of Professional Medical Conduct to determine whether Mehulic, then a not yet licensed second-year medical resident, should be able to pursue a medical license in New York, and under what conditions.

Although, said the Appellate Division, the prior administrative rulings determined that Mehulic had engaged in professional incompetence on three occasions, there was no express or implied ruling that Hospital had terminated Mehulic's employment on the basis of that incompetence, or whether, in terminating her, Hospital had impermissibly retaliated against her for whistle blowing.

Citing Mehulic v State Board of Professional Medical Conduct, 107 AD3d 1066,  appeal dismissed 22 NY3d 911, the Appellate Division ruled that although Mehulic is precluded from relitigating the three instances of incompetence found in the prior proceedings, the Doctrine of Collateral Estoppel does not otherwise bar the litigation of her retaliation claims. Her defense, noted the Appellate Division, to Hospital's prima facieshowing that the "termination of [Mehulic's] employment was predicated upon grounds other than her exercise of any rights under Labor Law," she had "submitted evidence sufficient to raise triable issues of fact."

* §75-b of the Civil Service Law bars retaliatory action by public employers against a public employee for his or her alleged whistle blowing.

The decision is posted on the Internet at:

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