Opinion
2002-10502
Argued April 24, 2003.
May 12, 2003.
In an action to foreclose a mortgage, the defendant Shepherd's Beach, Inc., appeals from an order of the Supreme Court, Suffolk County (Baisley, J.), entered October 30, 2002, which denied its motion pursuant to CPLR 3211(a)(5) to dismiss the complaint on the ground that the action was barred by res judicata.
McGovern, Connelly Davidson, New Rochelle, N.Y. (Frank H. Connelly, Jr., of counsel), for appellant.
Tannenbaum Helpern Syracuse Hirschtritt, LLP, New York, N.Y. (Vincent J. Syracuse of counsel), for respondent.
Before: ANITA R. FLORIO, J.P., SANDRA J. FEUERSTEIN, LEO F. McGINITY, THOMAS A. ADAMS, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.
A prior action for the same relief was dismissed as time-barred (see Mercury Capital Corp. v. Shepherds Beach, 281 A.D.2d 604). Dismissal of the prior action constituted an adjudication on the merits (see Smith v. Russell Sage Coll., 54 N.Y.2d 185, 194) which barred relitigation of matters which could have or should have been raised in the prior action (see Harley v. Hawkins, 281 A.D.2d 593). Contrary to the plaintiff's contention, the issues raised in the instant action could have and should have been raised in that prior action.
The plaintiff's remaining contentions are without merit.
FLORIO, J.P., FEUERSTEIN, McGINITY and ADAMS, JJ., concur.