Sweeney v. New York City Department of Health & Mental Hygiene

421 This action is barred by the doctrine of res judicata. Plaintiffs fraud claim, based upon the same harm and arising out of the same facts presented •in a prior CPLR article 78 proceeding, could and should have been asserted in the prior proceeding (see generally Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 347-348 [1999]; Brooklyn Welding Corp. v City of New York, 198 AD2d 189 [1993], lv dismissed 83 NY2d 795 [1994]). Further, the relief sought in this action (i.e., lost civil servant benefits) could have been claimed and awarded in the article 78 proceeding as “incidental to the primary relief sought” (CPLR 7806; see Pauk v Board of Trustees of City Univ. of N.Y., 68 NY2d 702, 704-705 [1986]; Parker, 93 NY2d at 348). Concur — Gonzalez, PJ., Andrias, DeGrasse, Richter and Abdus-Salaam, JJ. [Prior Case History: 2010 NY Slip Op 32661(U).]