| Cypress Hills Cemetery v City of New York |
| 2009 NY Slip Op 08578 [67 AD3d 853] |
| November 17, 2009 |
| Appellate Division, Second Department |
| Cypress Hills Cemetery, Appellant, v City of New York etal., Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Kristin M. Helmers andNorman Corenthal of counsel), for respondents.
In an action, inter alia, pursuant to RPAPL article 15 to determine claims to certain realproperty, and for a judgment declaring, in effect, that the plaintiff has the right to use itseasement by implication to cross the Jackie Robinson Parkway at grade level, the plaintiffappeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County(Miller, J.), dated May 19, 2008, as granted that branch of the defendants' motion which was, ineffect, pursuant to CPLR 3211 (a) (5) to dismiss the amended complaint as barred by thedoctrine of res judicata.
Ordered that the order is affirmed insofar as appealed from, with costs, and the matter isremitted to the Supreme Court, Kings County, for the entry of a judgment declaring that theplaintiff does not have the right to use its easement by implication to cross the Jackie RobinsonParkway at grade level (see RPAPL 1521 [1]).
This is the second action commenced by the plaintiff arising out of the condemnation of aportion of its land by the City of New York for construction of the Interboro Parkway (nowknown as the Jackie Robinson Parkway) (see Cypress Hills Cemetery v City of New York, 35 AD3d 788[2006]). In the previous action, the plaintiff sought, inter alia, a judgment declaring that it had aneasement to cross the Parkway at the location of two bridges which connected the bisectedparcels of its land, and enjoining the impending demolition of those bridges by the City or, in thealternative, directing the City to replace the bridges. That action terminated with a determinationon the merits that the plaintiff does have such an easement, but that the burden to repair orreplace the means of using the easement fell on the plaintiff as the owner of the dominant estate(see Cypress Hills Cemetery v City ofNew York, 35 AD3d 788 [2006]). After the City demolished the bridges, the plaintiffcommenced this action, seeking to enforce newly-asserted purported rights to utilize its easementby crossing the Parkway at grade level and to erect entryways for direct access to traffic on theParkway. The Supreme Court granted that branch of the defendants' motion which was, in effect,pursuant to CPLR 3211 (a) (5) to dismiss the amended complaint as barred by the doctrine of resjudicata.[*2]
The Supreme Court properly determined that theamended complaint should be dismissed as barred by the doctrine of res judicata (see DeanR. Pelton Co. v Moundsville Shopping Plaza, 173 AD2d 201 [1991]). Res judicata barsrelitigation of claims "where a judgment on the merits exists from a prior action between thesame parties involving the same subject matter" (Matter of Hunter, 4 NY3d 260, 269 [2005]). " '[O]nce a claim isbrought to a final conclusion, all other claims arising out of the same transaction or series oftransactions are barred, even if based upon different theories or if seeking a different remedy' "(Xiao Yang Chen v Fischer, 6NY3d 94, 100 [2005], quoting O'Brien v City of Syracuse, 54 NY2d 353, 357[1981]). Res judicata precludes relitigation of all claims which were raised, or could have beenraised, in the prior action (see XiaoYang Chen v Fischer, 6 NY3d 94, 100 [2005]).
The claims raised by the plaintiff in this action arise out of the same transaction as thoseraised in the prior action, and could have been raised in the prior action. The plaintiff has notpleaded any interference with its easement subsequent to and independent from the demolition ofthe bridges contemplated by the parties in the previous action, such as a refusal by therespondents to permit the plaintiff to replace the bridges at its own expense. Accordingly, thedoctrine of res judicata bars this action, despite the plaintiff's assertion of different theories andrequest for a different remedy (see Xiao Yang Chen v Fischer, 6 NY3d at 100;O'Brien v City of Syracuse, 54 NY2d at 357).
In light of this determination, the parties' remaining contentions have been renderedacademic. Rivera, J.P., Fisher, Belen and Austin, JJ., concur. [See 19 Misc 3d 1134(A),2008 NY Slip Op 51004(U).]