McAllister v. Division of Parole

Sep 24, 1992
Versions:186 A.D.2d 326
588 N.Y.S.2d 199
1992 N.Y. App. Div. LEXIS 10813

—Appeal from a judgment of the Supreme Court (Hemmett, Jr., J.), entered November 22, 1991 in Washington County, which, in a proceeding pursuant to CPLR article 78, granted respondents’ motion to dismiss the petition.

*327In this CPLR article 78 proceeding, petitioner challenges the determination to revoke his parole claiming that the preliminary and final revocation hearings were not conducted in a timely manner. In a prior proceeding commenced pursuant to CPLR article 70, petitioner unsuccessfully argued this same timeliness issue (People ex rel. McAllister v Leonardo, 182 AD2d 1031). As petitioner has already had a full and fair opportunity to litigate the timeliness issue in the habeas corpus proceeding, he is precluded from relitigating the same issue in this proceeding (see, Kaufman v Lilly & Co., 65 NY2d 449, 455). Because petitioner’s claim was finally resolved against him and he has failed to meet his burden of showing that he did not have a fair opportunity to litigate the issues, any new claims arising out of the same transaction which he is attempting to raise for the first time in this proceeding are also barred (see, Matter of Reilly v Reid, 45 NY2d 24, 27-28; Matter of La Ruffa v Smith, 148 AD2d 885, 886-887, lv denied 74 NY2d 608).

Weiss, P. J., Mikoll, Yesawich Jr., Mercure and Crew III, JJ., concur. Ordered that the judgment is affirmed, without costs.