This matter comes before the Court on Defendant's motion to dismiss the portion of the First Cause of Action in Plaintiffs' Complaint that seeks damages based on a violation of Plaintiffs' constitutional rights, and to dismiss any claim for punitive damages. Plaintiffs have opposed the motion.

Plaintiffs' First Cause of Action is labeled "Abuse of Authority" and alleges that certain actions by Defendant were "arbitrary, unreasonable, unlawful and undertaken in violation of the property, statutory and constitutional rights of Plaintiffs." Defendant argues that Plaintiffs are precluded from asserting any constitutional claims against Defendant by the doctrine of collateral estoppel and the applicable statute of limitations.

Defendant points to an action filed by Plaintiffs in federal court as the source of its estoppel argument. In that action, Plaintiffs asserted claims based on the Fourth, Fifth and Fourteenth Amendments to the United States Constitution. Defendant brought a motion for summary judgment dismissing those claims, and in a decision issued in December of 2020, the federal court denied the defense motion as to Plaintiffs' Fourth and Fifth Amendment claims. However, the court granted the defense motion as to Plaintiffs' Monell claims (Monell v. Dept. of Soc. Serv. of the City of New York, 436 US 658 [1978] [regarding particular pleading and proof requirements for a claim against a municipality based on conduct by its employee]). Upon a defense motion for reconsideration, the federal court issued another decision in May of 2021, in which it held that the Monell requirements applied to all of Plaintiffs' claims based on the Fourth and Fifth Amendments and dismissed those claims in their entirety. Defendant argues that any and all constitutional claims are thus precluded here.

Plaintiffs focus their response to Defendant's motion on the analysis in the December 2020 federal decision, in which the federal court concluded that the City did not afford adequate notice of the demolition of the Nicholaus Building and that the conduct of City officials amounted to the improper use of police powers. Plaintiffs assert that the federal court never ruled that there had been no constitutional violation, but only that Plaintiffs could not assert those failures in a §1983 action. Plaintiffs thus argue that they are able to assert constitutional claims in this action to support their First Cause of Action.

These arguments require a careful reading of the decision that ended the federal action. Collateral estoppel applies to claims that were or could have been litigated "despite the fact that the claims are based on a different theory or seek a different remedy" (Corvetti v. Town of Lake Pleasant, 146 AD3d 1118, 1121 [3d Dept 2017] [internal quotation marks and citation omitted]). In this action, Plaintiffs are asserting the same series of events and essentially the same conduct by City officials that were alleged in the federal action. At a minimum, collateral estoppel precludes constitutional claims that were or could have been alleged under §1983 in the federal action.

Plaintiffs' "state law claims" in the federal action (abuse of authority, trespass, negligence, intentional destruction of property) were dismissed without prejudice because, in the absence of the dismissed federal law claims, the federal court declined to exercise supplemental jurisdiction. The claim for abuse of authority in Plaintiffs' federal complaint alleged that Defendant's actions were " in violation of the constitutional rights of Plaintiffs." So, while it is clear that any claims under §1983 are foreclosed in this action, other constitutional claims could survive. For example, claims can be asserted without enabling legislation like §1983 if the constitutional provision being asserted is self-executing (see e.g. Brown v. State, 89 NY2d 172 [1996]). It thus appears that Plaintiffs retain the opportunity to articulate a constitutional basis for their abuse of authority claim. At this early point in the case, however, Plaintiffs' claims have not been fleshed out to the point where specific constitutional violations have been alleged. Whether any specific claims will be precluded by collateral estoppel or allowed to proceed will depend upon the nature of the constitutional claim asserted and will be subject to further order of this Court.

Defendant also argues that any new §1983 claim Plaintiffs might assert — presumably, one that could not have been litigated in the federal action — is barred by the applicable three-year statute of limitations. Defendant is correct that the statute of limitations for a §1983 claim is found in CPLR 214 (Pitt v. City of New York, 63 NY2d 815 [1984]). The time frame for the claims alleged in the Complaint ends in April of 2017. Even allowing for the COVID-19 pandemic toll enacted through Executive Order 202.8 and its subsequent extensions, that limitations period ended prior to the commencement of this action. Plaintiffs do not take issue with this argument. In addition to the effect of collateral estoppel, then, Plaintiffs are also precluded from asserting a claim under §1983 by the expiration of the applicable limitations period.

Finally, Defendant seeks dismissal of any claim for punitive damages. Defendant cites Clark-Fitzpatrick, Inc. v. Long Island Rail Road Co. (70 NY2d 382 [1987]) for the well-established principle punitive damages cannot be awarded against a municipality. Plaintiffs respond that this action is at an early stage, so that a factual record supporting punitive damages has not yet been developed. The prohibition of punitive damages awards against the state or its political subdivisions, however, is a matter of law and not dependent on the factual record [*2](Sharapata v. Town of Islip, 56 NY2d 332 [1982]).

Therefore, in consideration of the foregoing, it is hereby

ORDERED, that the motion by Defendant seeking dismissal of that portion of Plaintiffs' First Cause of Action which seeks damages for violation of Plaintiffs' constitutional rights is GRANTED IN PART, and any claims encompassed by the Complaint that rely on 42 USC §1983 are hereby dismissed; and it is further

ORDERED, that the motion by Defendant seeking dismissal of any claim for punitive damages is GRANTED and Plaintiffs' claim for punitive damages is hereby dismissed; and it is further

ORDERED, that the motion by Defendant is denied in all other respects.

Notice of Motion; Affidavit of James J. Burns, Esq., with annexed exhibits; Affirmation in Opposition of Linda S. Roth, Esq.; Reply Affidavit of James J. Burns, Esq.