summary judgment motion is on the merits and has preclusive effect’ " ( Cox v. Hubbard, 115 A.D.3d 783, 785, 982 N.Y.S.2d 370, quoting Methal v. City of New York, 50 A.D.3d 654, 656, 855 N.Y.S.2d 588 ). "Under the doctrine of res judicata, a disposition on the merits bars litigation between the same parties or those in privity with them of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior proceeding" ( Goldstein v. Massachusetts Mut. Life Ins. Co., 32 A.D.3d 821, 821, 820 N.Y.S.2d 852 ; seeCox v. Hubbard, 115 A.D.3d at 784, 982 N.Y.S.2d 370 ). Where "[t]he parties, property, issues, facts, and relief sought in the [plaintiff's] previous application ... are essentially identical," the commencement of a second action or proceeding " ‘simply to cure defects in the proof and to improve the quality thereof is not a distinction which precludes the application of res judicata’ " ( Matter ofFalco v. Town of Islip, 289 A.D.2d 490, 491, 734 N.Y.S.2d 643, quoting Matter ofFreddolino v. Village of Warwick Zoning Bd. of Appeals, 192 A.D.2d 839, 840, 596 N.Y.S.2d 490 ). Here, the Supreme Court should have denied the plaintiff's motion for summary judgment on the specific performance cause of action and granted those branches of the defendant's cross motion which were, in effect, for summary judgment dismissing the complaint and to discharge and cancel the notice of pendency.
ion is on the merits and has preclusive effect'" (Cox v Hubbard, 115 A.D.3d 783, 785, quoting Methal v City of New York, 50 A.D.3d 654, 656). "Under the doctrine of res judicata, a disposition on the merits bars litigation between the same parties or those in privity with them of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior proceeding" (Goldstein v Massachusetts Mut. Life Ins. Co., 32 A.D.3d 821, 821; see Cox v Hubbard, 115 A.D.3d at 784). Where "[t]he parties, property, issues, facts, and relief sought in the [plaintiff's] previous application . . . are essentially identical," the commencement of a second action or proceeding "'simply to cure defects in the proof and to improve the quality thereof is not a distinction which precludes the application of res judicata'" (Matter of Falco v Town of Islip, 289 A.D.2d 490, 491, quoting Matter of Freddolino v Village of Warwick Zoning Bd. of Appeals, 192 A.D.2d 839, 840). Here, the Supreme Court should have denied the plaintiff's motion for summary judgment on the specific performance cause of action and granted those branches of the defendant's cross motion which were, in effect, for summary judgment dismissing the complaint and to discharge and cancel the notice of pendency.
Here, Duocolony established that in the first action, the plaintiffs raised the issue of the plaintiff's view having been obscured by the snow and the proximity of the parked vehicle, and this contention was rejected ( see Rodenheiser v. State of New York, 47 A.D.3d 788, 850 N.Y.S.2d 179; Nissequogue Boat Club v. State of New York, 14 A.D.3d 542, 544, 789 N.Y.S.2d 71; Lozada v. GBE Contr. Corp., 295 A.D.2d 482, 483–484, 744 N.Y.S.2d 464). In opposition to Duocolony's prima facie showing, the plaintiffs, as the party to be precluded, did not meet their burden of “demonstrating the absence of a full and fair opportunity to contest the prior determination” ( Buechel v. Bain, 97 N.Y.2d 295, 304, 740 N.Y.S.2d 252, 766 N.E.2d 914, cert. denied 535 U.S. 1096, 122 S.Ct. 2293, 152 L.Ed.2d 1051; see Matter of Falco v. Town of Islip, 289 A.D.2d 490, 491, 734 N.Y.S.2d 643; Frybergh v. Kouffman, 145 A.D.2d 529, 536 N.Y.S.2d 466; Jensen v. Zoning Bd. of Appeals of Vil. of Old Westbury, 130 A.D.2d 549, 551, 515 N.Y.S.2d 283; cf. Sucher v. Kutscher's Country Club, 113 A.D.2d 928, 930–931, 493 N.Y.S.2d 829). Because the plaintiffs “had a full and fair opportunity to litigate the issue in the earlier action, fairness and efficiency dictate that [they] should not be permitted to try the issue again” ( Bansbach v. Zinn, 1 N.Y.3d 1, 10, 769 N.Y.S.2d 175, 801 N.E.2d 395). Accordingly, the Supreme Court should have granted that branch of Duocolony's motion which was for summary judgment dismissing the complaint insofar as asserted against it as barred by the doctrine of collateral estoppel.
Contrary to the petitioner's contention, a prior proceeding pursuant to CPLR article 78 was finally determined by an unappealed judgment of the Supreme Court, Westchester County, entered August 6, 2008, which determined that the subject lots had not merged with the adjacent property under theories of common ownership or merger by use, and directed the respondent Zoning Board of Appeals of the Village of Irvington (hereinafter the ZBA) to grant the applicant a variance to construct a dwelling on the lots as a matter of right. Accordingly, the petitioner's current contentions that the lots did merge, and that they constitute an unbuildable side yard, were or could have been raised in the previous CPLR article 78 proceeding and are, thus, now precluded by principles of res judicata ( see Matter of Josey v Goord, 9 NY3d 386, 389-390; Lefkowitz v Etra Etra, 13 AD3d 132, 133; Matter of Falco v Town of Islip, 289 AD2d 490, 490-491; Matter of Waylonis v Baum, 281 AD2d 636, 638). In addition, the petitioner's contention that the ZBA failed to weigh the statutory factors ( see Village Law § 7-712-b [b]) in exercising its discretion is unavailing, since the judgment entered August 6, 2008, mandated that the variance be issued.
modified, on the law, by deleting the provision thereof denying those branches of the motion and cross motion of the defendant Peter Morton which were to vacate the mortgage recorded by the plaintiff against the subject property, and substituting therefor a provision granting those branches of the motion and cross motion; as so modified, the order and judgment is affirmed insofar as appealed and cross-appealed from, with one bill of costs to the defendants Gary Feldstein and Peter Morton. Contrary to the plaintiff's contentions, the Supreme Court properly concluded that the plaintiff lacked standing to maintain this action challenging the validity of the deeds to the defendants Feldstein and Morton ( see Society of Plastics Indus. v. County of Suffolk, 77 NY2d 761). Moreover, the plaintiff's causes of action previously were litigated and resolved in the prior actions between the parties, and thus are barred by principles of res judicata ( see Matter of Hodes v. Axelrod, 70 NY2d 364; Falco v. Town of Islip, 289 AD2d 490; Ordenana v. Weber, 269 AD2d 580). The Supreme Court correctly denied those branches of the motion and cross motion of the defendant Peter Morton which were for summary judgment on the issue of liability with respect to his counterclaims.
motion is on the merits and has preclusive effect'" (Cox v Hubbard, 115 A.D.3d 783, 785, quoting Methal v City of New York, 50 A.D.3d 654, 656). "Under the doctrine of res judicata, a disposition on the merits bars litigation between the same parties or those in privity with them of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior proceeding" (Goldstein v Massachusetts Mut. Life Ins. Co., 32 A.D.3d 821, 821; see Cox v Hubbard, 115 A.D.3d at 784). Where "[t]he parties, property, issues, facts, and relief sought in the [plaintiff's] previous application... are essentially identical," the commencement of a second action or proceeding "'simply to cure defects in the proof and to improve the quality thereof is not a distinction which precludes the application of res judicata'" (Matter of Falco v Town of Islip, 289 A.D.2d 490, 491, quoting Matter of Freddolino v Village of Warwick Zoning Bd. of Appeals, 192 A.D.2d 839, 840). Here, the Supreme Court should have denied the plaintiff's motion for summary judgment on the specific performance cause of action and granted those branches of the defendant's cross motion which were, in effect, for summary judgment dismissing the complaint and to discharge and cancel the notice of pendency.
ion is on the merits and has preclusive effect'" (Cox v Hubbard, 115 A.D.3d 783, 785, quoting Methal v City of New York, 50 A.D.3d 654, 656). "Under the doctrine of res judicata, a disposition on the merits bars litigation between the same parties or those in privity with them of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior proceeding" (Goldstein v Massachusetts Mut. Life Ins. Co., 32 A.D.3d 821, 821; see Cox v Hubbard, 115 A.D.3d at 784). Where "[t]he parties, property, issues, facts, and relief sought in the [plaintiff's] previous application . . . are essentially identical," the commencement of a second action or proceeding "'simply to cure defects in the proof and to improve the quality thereof is not a distinction which precludes the application of res judicata'" (Matter of Falco v Town of Islip, 289 A.D.2d 490, 491, quoting Matter of Freddolino v Village of Warwick Zoning Bd. of Appeals, 192 A.D.2d 839, 840). Here, the Supreme Court should have denied the plaintiff's motion for summary judgment on the specific performance cause of action and granted those branches of the defendant's cross motion which were, in effect, for summary judgment dismissing the complaint and to discharge and cancel the notice of pendency.