You are here: / / DISMISSAL OF THE ACTION SEEKING OVERTIME PAY IN FEDERAL COURT ON THE GROUND...
, , ,

DISMISSAL OF THE ACTION SEEKING OVERTIME PAY IN FEDERAL COURT ON THE GROUND NO NOTICE OF CLAIM WAS FILED DID NOT PRECLUDE, PURSUANT TO THE DOCTRINE OF RES JUDICATA, AN ACTION IN SUPREME COURT SEEKING PERMISSION TO FILE A LATE NOTICE OF CLAIM (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the dismissal of the action concerning overtime pay in federal court, on the ground no notice of claim had been filed, did not preclude the action in Supreme Court seeking leave to file a late notice of claim:

… [T]he federal court dismissed the New York Labor Law claims for failure to file a timely notice of claim (see County Law § 52; General Municipal Law § 50-e). …

… [S]o much of the petition as sought leave to deem the late notice of claim timely served nunc pro tunc is not barred by the doctrines of collateral estoppel and res judicata. Although collateral estoppel precludes a party from relitigating in a subsequent action or proceeding an issue which was raised and decided in a prior action or proceeding … , the issue of whether the petitioners could obtain leave to deem the late notice of claim timely served nunc pro tunc pursuant to General Municipal Law § 50-e(5) was not litigated or decided by the 2017 federal order. As the issue was not litigated, the petitioners are not precluded from raising it … .

Res judicata also is inapplicable to so much of the petition as sought leave to deem the late notice of claim timely served nunc pro tunc. “Under the doctrine of res judicata, a disposition on the merits bars litigation between the same parties, or those in privity with them, of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior proceeding” … . Since the federal court was without jurisdiction to determine whether the petitioners could obtain leave to deem the late notice of claim timely served nunc pro tunc (see General Municipal Law § 50-e[7]), the petitioners are not precluded by the doctrine of res judicata from seeking a determination of this issue … . Matter of Chodkowski v County of Nassau, 2020 NY Slip Op 01058, Second Dept 2-13-20

 

You might also like
PLAINTIFF’S SOLE REMEDY FOR HIS ON THE JOB INJURY IS WORKERS’ COMPENSATION; PLAINTIFF WAS NOT GRAVELY INJURED AND THERE WAS NO AGREEMENT WITH HIS EMPLOYER TO CONTRIBUTE, INDEMNIFY OR INSURE; THE EMPLOYER’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).
Although There Was Evidence the Plaintiff Failed to Yield the Right-of-Way, There Was a Triable Question of Fact Whether Defendant Could Have Taken Steps to Avoid the Collision
VEHICLE AND TRAFFIC LAW 388 (1), WHICH IMPOSES VICARIOUS LIABILITY ON THE OWNER OF A VEHICLE, DOES NOT PERMIT A NEGLIGENT DRIVER TO SUE THE VEHICLE OWNER FOR THE DRIVER’S OWN NEGLIGENCE (SECOND DEPT).
Abuse of Discretion in Disallowing Jury Challenge Required Reversal of Conviction
Sudden Unexpected Action by Student Did Not Support Action Based on Negligent Supervision
DEFENDANT’S FOR CAUSE CHALLENGE TO A PROSPECTIVE JUROR WHO COULD NOT SAY HE WOULD NOT HOLD DEFENDANT’S FAILURE TO TESTIFY AGAINT HIM SHOULD HAVE BEEN GRANTED; A POLICE OFFICER WHO SPENT ONLY 10 OR 15 MINUTES WITH THE DEFENDANT SHOULD NOT HAVE BEEN ALLOWED TO IDENTIFY THE DEFENDANT IN A VIDEO, DESPITE THE CHANGE IN DEFENDANT’S APPEARANCE (SECOND DEPT).
Absence of 90-Day Demand to Serve a Note of Issue Precluded Dismissal of Lawsuit Based on Gross Laches (12-Year Delay)
A DEFAULTING PARTY ADMITS ALL THE ALLEGATIONS IN THE COMPLAINT; THEREFORE LIABILITY ISSUES SHOULD NOT BE CONSIDERED AT THE INQUEST (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

DECEDENT’S WORK AS A WELDER NOT A COVERED ACTIVITY UNDER LABOR LAW 240... EVIDENCE OF VOYEURISTIC DISORDER SHOULD NOT HAVE BEEN CONSIDERED IN THIS SEX...