| Djoganopoulos v Polkes |
| 2009 NY Slip Op 08173 [67 AD3d 726] |
| November 10, 2009 |
| Appellate Division, Second Department |
| Nevin Djoganopoulos et al., Appellants, v Jonathan D.Polkes et al., Respondents. |
—[*1] Cohen & Warren, P.C., Smithtown, N.Y. (Barry L. Warren of counsel), and Weil, Gotshal &Manges, LLP, New York, N.Y. (Howard B. Comet, Gregory Silbert, and David Yolkut ofcounsel), for respondents.
In an action, inter alia, pursuant to RPAPL article 15 to establish the plaintiffs' right to aneasement, the plaintiffs appeal from a judgment of the Supreme Court, Suffolk County (Pitts, J.),dated June 18, 2008, which, upon an order of the same court dated April 7, 2008, granting thedefendants' motion to dismiss the complaint pursuant to CPLR 3211 (a) (5) on the ground theaction is barred by the doctrine of res judicata, is in favor of the defendants and against them,dismissing the complaint.
Ordered that the judgment is reversed, on the law, with costs, the motion is denied, the orderdated April 7, 2008 is modified accordingly, and the matter is remitted to the Supreme Court,Suffolk County for further proceedings on the complaint.
The plaintiffs and two others commenced a prior action seeking to compel the defendantsand the Building Inspector of the Village of Westhampton Dunes to process and grant theirapplication for a building permit for the construction of a walkway on an easement over landowned by the defendant Elizabeth Hale's predecessor-in-title and adjacent to land owned by thedefendants Jonathan D. Polkes and Ellen G. Polkes. In that action, the Supreme Court grantedthat [*2]branch of the defendants' motion which was to dismissthe complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action (see Feder vPolkes, 67 AD3d 727 [2009] [decided herewith]). Thereafter, the plaintiffs commenced theinstant action pursuant to RPAPL article 15, inter alia, to establish their right to the easement.
The Supreme Court incorrectly determined that the complaint in this action is barred by thedoctrine of res judicata. Under the doctrine of res judicata, a final adjudication of a claim on themerits precludes relitigation of that claim and all claims arising out of the same transaction orseries of transactions by a party or those in privity with a party (see Gramatan Home Invs.Corp. v Lopez, 46 NY2d 481, 485 [1979]; see also Winkler v Weiss, 294 AD2d 428[2002]). Where a dismissal does not involve a determination on the merits, the doctrine of resjudicata does not apply (see Maitland v Trojan Elec. & Mach. Co., 65 NY2d 614 [1985];Sclafani v Story Book Homes, 294 AD2d 559, 559-560 [2002]). The complaint in theprior related action was dismissed on the ground that it did "not contain any factual avermentsagainst" Jonathan D. Polkes, Ellen G. Polkes, and Megan Strecker. "Rather, the conductcomplained of involves only the Village [of Westhampton Dunes and its officials]" (Feder vPolkes, 67 AD3d 727 [2009] [decided herewith]). Therefore, the dismissal was not on themerits, and the doctrine of res judicata does not apply in the instant case (see Maitland vTrojan Elec. & Mach. Co., 65 NY2d 614 [1985]).
We do not consider the defendants' contention that the plaintiffs failed to join necessaryparties since it was improperly raised for the first time in their reply papers before the SupremeCourt (see Crummell v Avis Rent A CarSys., Inc., 62 AD3d 825 [2009]; Luft v Luft, 52 AD3d 479, 480 [2008]; Medugno v City ofGlen Cove, 279 AD2d 510, 511-512 [2001]). Skelos, J.P., Santucci, Belen and Hall, JJ.,concur.