Allen v. New York State Division of Parole

Jul 9, 1998
Versions:252 A.D.2d 691
675 N.Y.S.2d 409
1998 N.Y. App. Div. LEXIS 8180

—Appeal from a judgment of the Supreme Court (Torraca, J.), entered August 21, 1997 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent’s motion to dismiss the petition on grounds of collateral estoppel and res judicata.

Petitioner commenced this CPLR article 78 proceeding contending that respondent’s determination to revoke his parole should be annulled because it is not supported by substantial evidence, was influenced by Hearing Officer bias and resulted in an excessive penalty. The record reveals that petitioner unsuccessfully advanced nearly identical arguments in two prior proceedings commenced pursuant to CPLR article 70. Because petitioner was afforded a full and fair opportunity *692in the context of those proceedings to litigate the issues, he is barred from relitigating them in this proceeding (see, Matter of McAllister v Division of Parole, 186 AD2d 326). To the extent that some of petitioner’s claims may differ from those previously raised, they are nevertheless precluded because they arise out of the same transaction which was finally resolved against petitioner in the CPLR article 70 proceeding (see, Matter of La Ruffa v Smith, 148 AD2d 885, lv denied 74 NY2d 608).

Cardona, P. J., Mercure, Crew III, Carpinello and Graffeo, JJ., concur. Ordered that the judgment is affirmed, without costs.