# Petition for Writ of Certiorari — Bartel Dental Book Co. v. Schultz > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1897%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1986 - **Citation:** 478 U.S. 1006 ## Text Supreme Court, U.S. —_ 255 8: MAY 10 1985 tip GLERK F. SPANIOL, UR. October Term, 1985 BARTEL DENTAL BOOK CO. INC. and MAPLETON HOUSE BOOKS, INC., Petitioners, vs. PETER J. SCHULTZ, DORMITORY AUTHORITY OF THE STATE OF NEW YORK and EDWARD A. PICHLER, SHERIFF OF THE CITY OF NEW YORK, Respondents. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT RUDICK AND RIKON, P.C. Attorneys for Petitioners 150 Broadway New York, New York 10038 (212) 732-4277 MICHAEL RIKON Of Counsel 3973 tz *NJ (201) 257-6850eNY (212) 840-9494¢PA (215) 563-5587 MA (617) 542-1114*DC (202) 783-7288¢USA (300) 5 APPEAL _ QUESTIONS PRESENTED FOR REVIEW 1. Whether it was proper to impose sanctions under Federal Rule of Civil Procedure Rule 11 when part of a complaint has been held not to be frivolous and the filing of the complaint obtains a beneficial result. 2. Whether the courts below erred in holding that petitioners were not entitled to due process to determine the proper relocation costs after property was taken by eminent domain. 3. Whether the courts below erred in dismissing an equal protection claim on a pre-answer motion on the basis that there was a failure to establish facts. il TABLE OF CONTENTS Page Question Presented for Review ..............c.ceceee, i Table of Comtemts ..... cncscvcserceieseee ans bees il Table of Citations... ... 66606: SO ed ee ee ill Opinions Below . ....:.0ccse00se00sse5upene eee 2 Statement of Jurisdiction........... ocevsee tudes sbaeas 2 Constitutional Provisions and Statutes Involved......... 2 Seosement of the Case .....0.0s00cck0e eee ee ene eens 2 A. The Procesliaas .....,:.— Appeal from grant of summary judgment by the United States District Court for the Eastern District of New York, Nickerson, J/., dismissing plaintiff’s 42 U.S.C. § 1983 (1982) action and ordering plaintiffs to pay defen- dants’ attorneys’ fees in defending against all except one of plaintiffs’ claims. Affirmed. —— MICHAEL RIKON, New York City (Rudick and Rikon, New York City, of counsel), for Appellants. DAVID E. NACHMAN, New York City (Martin Flumenbaum, Paul, Weiss, Rifkind, Wharton & Garrison, New York City, of counsel), for Appellees Peter J. Schultz and Dormitory Authority of the State of New York. Frederick A.O. Schwarz, Jr., Corpora- tion Counsel of the City of New York, Fay Leoussis, Barry P. Schwartz, Office of the Corporation Counsel of the City of New York, New York City, for Munici- pal Appellee Pichler. - 3a Appendix A MESKILL, Circuit Judge: This is an appeal from the grant of summary judgment by the United States District Court for the Eastern Dis- trict of New York, Nickerson, J., after finding that (1) the claims of appellant Bartel Dental Books Co. (Bartel!) under 42 U.S.C. § 1983 (1982) were frivolous because Bartel had previously released all of its claims against defendants, and (2) the claims of appellant Mapleton House Books, Inc. (Mapleton) were barred by the doc- trines of issue and claim preclusion. The district court also ordered plaintiffs to reimburse defendants New York Dormitory Authority (NYDA) and Peter J. Schultz for the costs and attorneys’ fees they incurred in defending against all but one of plaintiffs’ claims. We affirm the judgment of the district court and order that sanctions for a frivolous appeal be imposed on appellants and their attorney, Michael Rikon. BACKGROUND Bartel and Mapleton were family owned businesses operating out of the same warehouse. Bartel owned the warehouse and Mapleton leased it from Bartel. When NYDA condemned the property, Bartel and Mapleton filed claims for their respective losses. Later Bartel re- leased NYDA from all claims and Mapleton gave NYDA a partial release, expressly reserving any claim it might have for relocation costs. , Although NYDA was not bound by either federal or state law to pay a business for the cost of moving its operations, it regularly followed the administrative prac- tice of the City of New York and made such payments. 4a Appendix A Mapleton and NYDA failed to reach an agreement with regard to relocation expenses. NYDA moved under section 405 of the New York Eminent Domain Procedure Law, N.Y.E.D.PL. § 405 (McKinney 1979), for an order directing Mapleton to vacate the premises. In its moving papers, NYDA alerted the Supreme Court that Mapleton might attack NYDA’s method of calculating relocation costs. Mapleton de- faulted instead and the order to vacate was granted. Mapleton then confirmed NYDA’s prognostication. In Mapleton’s appeal of the order to vacate, it claimed that NYDA’s method of calculating relocation costs violated its rights to due process. The Appellate Division ulti- mately dismissed that appeal for lack of prosecution. Mapleton’s due process claim appeared a second time in a proceeding under Article 78 of the New York Civili Practice Law, N.Y. Civ. Prac. Law § 7801 ef seq. (McKinney 1981). There Mapleton requested a judicial determination of the proper method for calculating relo- cation costs and a stay of the order to vacate. The application for a stay was denied. Mapleton then aban- doned the Article 78 proceeding. Mapleton and Bartel next brought a section 1983 action in federal court alleging that the failure to grant them a plenary hearing on the amount and manner of calculating relocation - expenses denied them their rights to due process and that the failure to treat them in the same manner as the other claimants denied them equal protec- tion of the law. Defendants moved to dismiss the action. The district court treated the motion as one for summary judgment after giving the parties notice at oral argument that it intended to do so. Mapleton submitted a memo- Sa Appendix A randum in opposition to the motion to dismiss, again asserting that it had a constitutional right to a hearing. The district court found that Bartel had released all claims against NYDA when it signed a release. The court therefore concluded that Bartel’s section 1983 claims were frivolous. As to Mapleton, the court concluded that because all of its constitutional claims were actually raised or could have been raised in the state court pro- ceedings, they were barred under Migra v. Warren Uity School District Board of Education, 4675 (1984). Thus, even if those claims were not barred by res judicata, they failed on the merits because Mapleton had no right to relocation expenses under either federal or state law and, therefore, there was “no right to which process [was] due.” J. App. at 326. Furthermore, the court found that Mapleton had failed to make a showing that there was a genuine equal protection issue. It imposed Rule 11 sanc- tions against Mapleton, Bartel and their attorneys for bringing a frivolous suit. Mapleton and Bartel claim on this appeal that the district court erred in all aspects of its decision. We disagree. Mapleton and Bartel also claim that the district judge should have recused himself because one of his law clerks had applied to become an associate in the law Offices of defendant Schultz’s counsel. This claim is frivolous. DISCUSSION 1. Bartel’s Release The district court properly found Bartel’s claims to be frivolous. Contract principles apply to the interpretation 6a Appendix A of releases. Bank of America v. Gillaizeau, 766 F.2d 709, 715 (2d Cir. 1985). Bartel argues before this Court that there is parol evidence to establish that all parties to the release implicitly agreed that Bartel’s claims for reloca- tion expenses were reserved. There was no explicit reser- vation in Bartel’s release; moreover, both the underlying settlement agreement and the release had valid integration clauses. Bartel thus seeks to contradict the plain language of the settlement agreement. That attempt clearly runs afoul of the parol evidence rule. Katz v. American Tech- nical Industries, 466 N.Y.S.2d 378, 380 (App. Div. 1983). 2. Claim Preclusion Under Migra In Migra, the Supreme Court held that federal district courts hearing section 1983 actions should apply the law of the forum state when deciding matters of claim preclu- sion. 465 U.S. at 85. The district court in this case properly found that all of the claims raised in Mapleton’s section 1983 action were or could have been litigated both in the course of Mapleton’s efforts to resist eviction and in the Article 78 action. It also properly found that New York courts would bar Mapleton from relitigating its constitutional claims. See O’Brien v. City of Syracuse, 445 N.Y.S.2d 687, 688 (Ct. App. 1981) (“[O]nce a claim is brought to a final conclusion, all other claims arising out of the same transaction . . . are barred, even if based upon different theories or if seeking a different remedy.”). Mapleton argues that Migra does not apply when a hearing has not actually been granted by the state courts. This argument is without merit for two reasons. First, Migra emphasized that federal courts should apply the same preciusive doctrines that a state court would apply. 465 U.S. at 81. New York courts look to whether a claim Ta Appendix A has been “brought to a final conclusion,” not to whether a full evidentiary hearing has been held on the claim. See O’Brien, 445 N.Y.S.2d at 688. Second, the Migra Court reasoned that the legislative policy embodied in 28 U.S.C. § 1738, which grants full faith and credit to state court judgments, was more important than providing a separate forum for state and federal claims. 465 U.S. at 84. In light of this reasoning, we apply the doctrine of res judicata to the facts of this case without regard to whether a hearing was actually granted in state court.’ Even if Mapleton’s constitutional claims were not barred by res judicata, they were properly dismissed because they fail on the merits. 3. Due Process The Fifth Amendment to the Constitution does not give rise to a “just compensation” right for the cost of relocating a business. United States v. Westinghouse Co., 339 U.S. 261, 264 (1950). Moreover, Mapleton cites no federal statute that would require NYDA to pay a con- demnee’s relocation expenses. The New York Constitu- tion also does not establish a right to be paid relocation ! Mapleton disingenuously claims that when it raised in state court the issues sought to be litigated here it was in a defensive posture. Mapleton was not in a defensive posture in the Article 78 proceeding. Moreover, we have already held that a “defensive posture” argument does not vitiate Migra. Genova v. Town of Southampton, 776 F.2d 1560, 1561 (2d Cir. 1985) (per curiam). Mapleton also urges that it did not have a “full and fair opportu- nity” to litigate the question it raises here. See Kaufman v. Eli Lilly and Co., 492 N.Y.S.2d 584, 588-89 (Ct. App. 1985); Schwartz v. Public Administrator, 298 N.Y.S.2d 955, 958-60 (Ct. App. 1969). Mapleton * questioned the method for determining relocation expenses when it opposed the motion to dismiss its direct appeal of the order to vacate. It could have pressed the issue in the Article 78 action, but chose instead to concentrate on getting a stay of the order to vacate. Mapleton had a “full and fair opportunity” to litigate the claims brought here. 8a Appendix A costs unless a statute expressly authorizes such payment. Dormitory Authority v. Security Mutual Insurance, 405 N.Y.S.2d 253 (App. Div. 1983); City of Buffalo v. Mollenberg-Betz Machine Co., 279 N.Y.S.2d 842, 849-50 (Sup. Ct. 1966). Mapleton concedes as much. Its argu- ment that it had a due process right to a full evidentiary hearing to determine the proper method of calculating relocation costs is thus frivolous.’ 4. Equai Protection The only original claim in this action was that Schultz violated Mapleton’s equal protection rights under the Fourteenth Amendment of the Constitution by offering other condemnees better relocation settlements than were tendered to Mapleton. There was no evidence, however, that Mapleton was discriminated against because it was a member of a suspect class or exercised a protected right. NYDA and Schultz correctly argue that administrative action is presumed regular unless there is some burden on a protected class or on protected rights. Cf. Bishop v. Wood, 426 U.S. 341, 350 (1976). Thus, no hearing in federal court is required to determine that the action was regular. Mapleton’s argument on this point is frivolous. Because there was no genuine issue as to any material fact, NYDA was entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c). Therefore, the court’s grant of summary judgment was proper. 2 Even if Mapleton had a due process interest in obtaining the full measure of relocation costs available to it under New York administra- tive law, Mapleton’s interest in that benefit must be balanced against the state’s interest in efficient condemnation proceedings. C/. Cleve- land Board of Education v. Loudermill, $3 U.S.L.W. 4306, 4308-09 (U.S. Mar. 19, 1985). Therefore, the only process actually due to Mapleton was notice and the opportunity to be heard on the issue. /d. at 4309. The record contains ample proof that Mapleton had both. 9a Appendix A 5. Rule 11 Sanctions Mapleton’s equal protection claim against Schultz was the only claim raised for the first time in its federal action. That claim was not supported by any legally relevant facts. Mapleton’s other claims had already been rejected by the New York courts and were clearly without merit. Furthermore, a competent attorney could not form a reasonable belief that any of these claims were “war- ranted by existing law or a good faith argument for extension, modification, or reversal of existing law.” Fed. R. Civ. P. 11. See also Eastway Construction Corp. v. City of New York, 762 F.2d 243, 253-54 (2d Cir. 1985). The district court clearly did not abuse its discretion when it ordered Mapleton to pay defendants’ costs and attorneys’ fees. The district court probably would have erred if it had not awarded attorneys’ fees to NYDA and to Schultz under Rule 11 of the Federal Rules of Civil Procedure. See Eastway, 762 F.2d at 253-54. See also Harbulak v. County of Suffolk, 654 F.2d 194, 198 (2d Cir. 1981) (trial court erred when it refused to award attorneys’ fees to prevailing defendant where plaintiff’s action under section 1983 was “unreasonable and ground- less, if not frivolous”). 6. Recusal Mapleton argues that Judge Nickerson should have recused himself when he learned that the law firm repre- senting defendant Schultz was considering one of his law clerks, Who was not working on the case, for employment as an associate. Mapleton concedes-that disqualification has not been required where the clerk is not working on the case. Reddy v. Jones, 419 F.Supp. 1391 (W.D.N.C. 10a Appendix A 1976). Mapleton argues, however, that another clerk who was working on the case “had to be” influenced by the knowledge that a co-worker was joining Schultz’s law firm. It also argues that a hearing should have been held on the issue of recusal. The conclusion that a law clerk “had to be” influenced by the actions of a co-worker is compelled by neither logic nor the record before us. Furthermore, the facts on the record do not justify further inquiry. This claim is also frivolous. 7. Sanctions for Frivolous Appeal This court has discretion to award Schultz and NYDA damages and double costs if it determines that this appeal is frivolous. Fed. R. App. P. 38. They may be awarded “as a matter of justice to the appellee{s] and as a penalty against the appellant.” Fed. R. App. P. 38 advisory committee note. Bartel and Mapleton have raised only frivolous issues on this appeal. The sheer number of claims of error makes the appeal no less frivolous. Neither does the naked assertion of good faith make the claims less unreasonable. The imposition of Rule 38 sanctions on Bartel and Mapleton is justified in this case. Attorneys can be held jointly and severally liable with their clients under Rule 38 for bringing frivolous appeals. United States v. Potamkin Cadillac Corp., 689 F.2d 379, 381-82 (2d Cir. 1982); Muigai v. INS, 682 F.2d 334, 337 (2d Cir. 1982); see also 28 U.S.C. § 1927 (1982) (“[a]ny attorney. . . who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such con- RE Te lla Appendix A duct”); cf. In re Cosmopolitan Aviation Corp., 763 F.2d 507, 517 (2d Cir.), cert. denied, 54 U.S.L.W. 3407 (U.S. Dec. 17, 1985) (sanctions for frivolous appeal also justi- fied under inherent power of court). Bartel’s and Mapleton’s counsel in this case should have been on notice that our patience with frivolous appeals is at an end. See, e.g., Beary v. West Publishing Co., 763 F.2d 66, 69 (2d Cir.), cert. denied, 54 U.S.L.W. 3252 (U.S. Oct. 15, 1985); Potamkin Cadillac, 689 F.2d at 381-82; Muigai, 682 F.2d at 337. We refer him to our “stern warning that the United States Courts are not powerless to protect the public, including litigants who appear before the Courts, from the depredations of those . . who hold themselves out as attorneys but who abuse the process of the Courts.” Jn re Hartford Textile Corp., 659 F.2d 299, 305 (2d Cir. 1981). In this case, counsel brought the same claims on appeal that the district court had previously found to be frivo- lous or baseless. The district court properly determined that the original pleading was not well grounded in fact and that it was not warranted either by existing law or by a good faith argument for reversing existing law. See Fed. R. Civ. P. 11. In his appellate brief and oral argument, counsel attempted to obfuscate the fact that his clients had no federai claim. Moreover, he fails even to offer a good faith argument for reversing the precedents that are so hostile to his clients’ claims. Affirmed with double costs against appellants Bartel and Mapleton and $1,000 attorneys’ fees as damages against appellants’ attorney Michael Rikon, all in favor of appellees Schultz and NYDA. 12a APPENDIX B—DECISION OF THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT DATED AUGUST 27, 1985 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK 85 C 993 BARTEL DENTAL BOOK CO. INC. and MAPLETON HOUSE BOOKS, INC., Plaintiffs, -against- PETER J. SCHULTZ, DORMITORY AUTHORITY OF THE STATE OF NEW YORK, VALIANT RIGGING & TRANSPORTATION, INC., EDWARD A. PICHLER, SHERIFF OF THE CITY OF NEW YORK and NEW YORK PIGGYBACK WAREHOUSE, INC. | Defendants. MEMORANDUM AND ORDER RUDICK and RIKON, P.C. (Michael Rikon, Esq., of counsel) New York, New York for plaintiffs 13a Appendix B PAUL, WEISS, RIFKIND, WHARTON & GARRISON (Martin Flumenbaum and David E. Nachman, Esqs., of counsel) New York, New York for defendants Peter J. Schultz and Dormitory Authority of the State of New York FREDERICK A.O. SCHWARZ, JR. Corporation Counsel of the City of New York (Kenneth P. Fee, Assistant Corporation Counsel, of counsel) New York, New York for defendant Edward A. Pichler NICKERSON, District Judge Plaintiffs brought this action under 42 U.S.C. § 1983, and also alleged state law claims. The case has been discontinued as to the private defendants and only Schultz, the Dormitory Authority of the State of New York (the Authority) and Pichler remain as defendants. They move to dismiss pursuant to Federal Rule of Civil Procedure 12(b){1) and (6). On notice to both parties at oral argument, the court treats it as a motion for summary judgment. See Federal Rule of Civil Procedure 12(b)(6). Defendants Schultz and Dormitory Authority also move for sanctions under Federal Rule of Civil Procedure !1. The following facts are undisputed. Plaintiffs Bartel Dental Book Co. Inc. (Bartel) and Mapleton House Books, Inc. (Mapleton) are in the business of buying and selling used books and periodicals. Bartel held title to real property at 112 Crown Street, Brooklyn (112 Crown), of which Mapleton was the lessee. The Authority is a New York State public benefit corporation, and Schultz is its Deputy Executive Director. The Authority and l4a Appendix B Schultz participated in the condemnation proceedings whereby the Authority acquired property (which included 112 Crown) to build new facilities for Medgar Evers College, a part of the City University of New York. On August 9, 1983 the Supreme Court of the State of New York-granted title to 112 Crown. On March 21, 1984 the plaintiffs and the Authority entered into a settlement agreement.under which the Authority was to pay Bartel a certain sum for its fee claim, and Bartel, ‘‘satisfied, discharged, released and settled’’ all claims ‘*made or which could have been made’’ in the condemnation proceeding. The Authority entered into a similar arrangement with Mapleton for its fixture claim, but Mapleton specifically reserved ‘any claim for relocation costs’’ which Mapleton ‘‘may have.’”’ The agreement further provided thai the plaintiffs: warrant and represent (a) that Mapleton is the only entity or person in possession of [the premises in question]; and (b) that Mapleton is the only person or entity who has any right, title or interest in or to any and all of the fixtures located in or about [the premises]. Mapleton continued, however, to occupy the premises, and in April of 1984 the Authority moved in the Supreme Court of the State of New York for eviction pursuant to the Eminent Domain Procedure Law Section 405. On May 7, 1984, on consideration of the papers submitted by the Authority and Mapleton, Judge Leone granted the Authority’s motion and ordered Mapleton to vacate the premises by May 10, 1984. Mapleton then brought on a series of motions and appealed. The Appellate Division at first granted a stay, but on July 27, I5a Appendix B 1984 vacated the stay. On September 12, 1984 the Appellate Division denied an order to restrain eviction. When the Sheriff began to remove Mapleton’s books from the premises Mapleton brought an Article 78 proceeding and applied for a restraining order against removal. The Kings County Supreme Court denied the order, and on September 21, 1984 denied a preliminary injunction. On March 12, 1985 the Appellate Division dismissed the appeal from the original eviction order for failure to perfect the appeal. The compiaint in the present case includes twelve claims, three federal claims pu:suant to 42 U.S.C. § 1983 and nine pendent state claims. The first claim is against Schultz for refusing ‘‘to apply or give the same relocation benefits to plaintiffs as it did to other claimants.’’ The second is against Schultz and the Authority and appears basically to allege that plaintiffs were denied due process by failure to receive a ‘‘plenary’’ or ‘‘evidentiary’’ hearing on their relocation costs prior to eviction. The third federal claim is against Schultz and the Authority alleging that plaintiffs failed to receive ‘‘just compensation’ for the relocation of their property. I Bartel has no claim against the Authority and its agents. On March 21, 1984 Bartel executed a release and an agreement settling all its claims against the Authority. Bartel, unlike Mapleton, did not reserve a claim for relocation costs. The agreement and release make it clear that Bartel’s claims are frivolous. Mapleton’s federal claims are barred by the doctrines of issue 16a Appendix B and claim preclusion. Mapleton’s second claim, asserting a due process challenge to the failure of the state courts to grant a pre- eviction evidentiary hearing on relocation expenses, was raised in the state courts. In moving to reargue Judge Leone’s decision, Mapleton argued that the court should have set the matter down for a **plenary hearing’’ on the relocation issue. An affidavit of Sidney Baumgarten, the lawyer for Mapleton at that time, shows that Mapleton also argued before Judge Leone on the original motion that he should hold a plenary hearing on the issue. Mapleton continued to argue on appeal and in its motions for stays that a plenary hearing should have been held, anc that it had a right to relocation expenses under ‘‘the Federal and State Constitutions.’’ In seeking a preliminary injunction on September 21, 1984, while its appeal of Judge Leone’s decision was still pending, Mapleton again contended that it was entitled to relocation casts and a plenary hearing on the manner in which the books should be moved. Mapleton’s claims were raised, or could have been raised, in the state court proceedings and are now precluded by the doctrines of collateral estoppel and res judicata. See Migra v. Warren City School District Board of Education, 104 S. Ct. 892 (1984); Wright v. National Bank of Stamford, 600 F. Supp. 1289, 1299-1300 (N.D.N.Y. 1985). The state court judgments are binding in a later section 1983 claim, Allen v. McCurry, 449 U.S. 90 (1980), and even if a constitutional claim has not actually been litigated. See Migra, supra, 104 S. Ct. at 897-98 & n.6 (in effect reversing the rule of Lombard v. Board of Education, 502 F.2d 631 (2d Cir. 1974), cert. denied, 420 U.S. 976 (1975)). A state court decision denying relief is no less preclusive because no opinion has been 17a Appendix B written. See Winters v. Lavine, 574 F.2d 46, 60-61 (2d Cir. 1978). Since Mapleton would be precluded from again raising its claims in the New York courts, Mapleton is also barred from relitigating those claims here. Its three federal claims arise out of the same transaction, and were or could have been presented to the state courts. Mapleton was not denied a full and fair opportunity to litigate those clains, including the claim that a pre- eviction hearing should have been held. See generally Taylor v. New York City Transit Authority, 433 F.2d 665 (2d Cir. 1970); Samuelil v. The New York Racing Association, Inc., 600 F. Supp. 819 (E.D.N.Y. 1985); Heimbach v. Chu, 744 F.2d 11, 13-14 (2d Cir. 1984). Schultz concedes that Mapleton’s first federal claim, asserting that he refused to accord relocation benefits which he granted others, was not actually litigated in the state proceedings. Nor was he a named party in those proceedings. New York has abandoned the requirement of mutuality, but it does require that the party against whom the collateral estoppel doctrine is invoked have had a ‘‘full and fair opportunity’’ to litigate the issue. See Winters, supra, 574 F.2d at 58 n.14. Although plaintiff does not explicitly state in what capacity Schultz is sued, he is clearly joined in his official capacity as the Deputy Executive Director of the Authority. For the purposes of this action Schultz is in privity with the Authority, which can only act through its employees and agents, and shares an identity of interest with the Authority. Mapleton’s first claim against Schultz is thus precluded by the doctrine of res judicata. Cf. Andrasko v. Calkins, 47 Misc.2d 816, 263 N.Y.S.2d 256 (1965); Rooney v. Tutano Contracting Corp., 43 Misc.2d 358, 251 N.Y.S.2d 392 (1964). 18a Appendix B Ill Even were the federal claims not barred by the doctrines of collateral estoppel and res judicata, they do not state valid claims under § 1983. There is no federal constitutional right to relocation costs. See, e.g., United States v. Westinghouse Electric & Mnf’g Co., 339 U.S. 261 (1950). There is also no state constitutional right to such costs, and plaintiffs do not assert a statutory right. Thus there is no right for which process is due. City of Buffalo v. Mollenberg-Betz Machine Co., 53 Misc.2d 849, 279 N.Y.S.2d 842 (1966). Nor has Mapleton shown facts to support an equal protection claim. In substance Mapleton contends that Schultz should have offered in moving costs $947,710, one of the estimates obtained by the Authority, or a higher amount in accordance with plaintiffs’ estimates. Instead he offered a considerably lower sum based on other estimates. However, Mapleton makes no factual showing that Schultz adopted different criteria in determining the amount to be offered to Mapleton from the criteria used to establish offers to other claimants. ‘ IV Schultz and the Authority move for costs and attorney’s fees under Federal Rule of Civil Procedure 11. That rule states that the signature of an attorney or party constitutes a certificate by him that to the best of his knowledge ‘‘after reasonable inquiry’’ the pleading is ‘‘well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law... .’’ The standard is intended to be more exacting than the previous good-faith formula. 19a Appendix B There is no basis in law or fact for claims by Bartel which released the Authority of liability. Indeed, Bartel’s current attorney witnessed that agreement. The only one of Mapleton’s federal claims which the court considers to rise above frivolity is the first claim. The court will therefore award fees for work fairly uttributable to work done in defending again all claims except Mapleton’s first claim. Plaintiffs’ attorney participated in parts of the state court proceedings and was familiar with the course of the litigation. Plaintiffs and their attorney shall share equally the burden of paying the attorneys’ fees incurred in defending this suit and are held jointly and severally liable for that amount. See Raffe v. Citibank, No. 84-305 (E.D.N.Y. Aug. 1, 1984). Vv Defendants’ motions are granted and the complaint is dismissed, including the pendent state claims. See Duntion v. County of Suffolk, 729 F.2d 903, 910-i1 (2d Cir. 1984). Defendants Schultz and the Authority shall submit affidavits of hours spent, fees sought and costs. So ordered. Dated: Brooklyn, New York August 27, 1985 s/ Eugene H. Nickerson Eugene H. Nickerson, U.S.D.J. 20a APPENDIX C—RELEVANT CONSTITUTIONAL PROVISIONS AND STATUTES The provision of the United States Constitution involved is Section 1 of the Fourteenth Amendment which provides in relevant part that ‘*No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws’’. 42 United States Code, Section 1983 provides **§ 1983. Civil action for deprivation of rights Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress’’. Sectiofi 74-b of the General Municipal Law (West) provides ‘*§ 74-b. Payment of moving and relocation expenses of residential and commercial owners and tenants of appropriated property. 1. The chief fiscal officer of every municipal 2la Appendix C corporation shall establish and may amend rules and regulations authorizing the payment of reasonable and necessary moving expenses or occupants of property acquired by condemnation Or agreement, such payments not to exceed one thousand dollars in the case of an owner or tenant of residential property and twenty-five thousand dollars in the case of an owner or tenant of commercial property. Such rules and regulations may further define the terms used in this section. . Application for such payment shall be made to the chief fiscal officer of such municipal corporation upon forms prescribed by him and shall be accompanied by such information and evidence as he may require. Upon approval of such application, the chief fiscal officer of such municipal corporation shall deliver a copy thereof to the treasurer of the municipal corporation or other officer of such municipal corporation exercising corresponding functions together with a certificate stating the amount due thereunder, and the amount so fixed shall be paid out of the municipal corporation treasury after audit by the comptroller of the municipal corporation or other officer of the municipal corporation exercising corresponding functions from moneys appropriated for,the acquisition of such property. As used in this section ‘commercial property’ shall include property owned by an individual, family, business concern (including the operation of a farm) and a non-profit organization. The provisions of this subdivision shall not 22a Appendix C apply to a city having a population of one million or more. 2. In addition to the authorization of subdivision one of this section, the governing body of any municipal corporation may adopt and amend rules and regulations authorizing the payment of relocation assistance allowances, related and other necessary expenses as described in the uniform relocation assistance act to owners or occupants of property or ahy interest therein acquired or to be acquired by such municipal corporation by condemnation, agreement or otherwise and for which federal funds shall be used toward the cost of such acquisition. Such rules and regulations may further define the terms used in this subdivision. In acquiring real property for which federal funds shall be used, the municipal corporation is hereby authorized to do such other and further acts not hereby specifically provided as may be necessary to comply with such uniform relocation assistance act. Application for such payment shall be made to the officer of such municipal corporation designated by the governing body, upon forms prescribed by him and shall be accompanied by such information and assistance as may be required to substantiate entitlement thereto. Pdyment shall be made as provided in such rules and regulations from moneys appropriated for the acquisition of such real property or interest therein. 23a Appendix C 3. As used in this section, the following terms shall have the following meanings: (a) ‘Municipal corporation’. A county, city, town, village, school district, fire district, district corporation and public authority. (b) ‘Uniform relocation assistance act’. The uniform relocation assistance and real property acquisition policies act of nineteen hundred seventy, being public law 91-646, as enacted by the ninety-first Congress of the United States and any federal laws amendatory or supplemental thereto. (c) ‘Governing body’. In a city, the legislative body as defined in subdivision seven of section two of the municipal home rule law, unless another provision of law or the city charter vests another officer or agency thereof with the power to fix and promulgate, with the approval of the mayor, schedules of relocation payments in which case, governing body shall mean such other officer or agency’’. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1897%3A1. Public record. Not legal advice.