Opinion
January 31, 1992
Appeal from the Supreme Court, Monroe County, Galloway, J.
Present — Denman, P.J., Doerr, Boomer, Pine and Balio, JJ.
Order unanimously reversed on the law with costs, cross motion granted and complaint dismissed, in accordance with the following Memorandum: In 1980, plaintiff commenced an action for specific performance of an alleged oral agreement that she and her husband could reside on the subject property for the remainder of their lives and for repayment of a $5,000 loan made to defendants. In the alternative, plaintiff asserted that a landlord-tenant relationship existed and that she had been wrongfully evicted from the premises. Defendants moved to dismiss that action for the failure to join plaintiff's husband as a necessary party. Plaintiff's counsel advised the court that he intended to withdraw the action and commence a new action, and as a result, no decision was rendered on that motion. Plaintiff commenced a second action in 1984, alleging adverse possession of the property and seeking a declaration of the rights of the parties with respect to the property. After the court granted summary judgment dismissing the 1984 action, plaintiff moved for leave to amend the complaint in the 1980 action to assert a new cause of action for the imposition of a constructive trust. Defendant Paul R. Hill cross-moved to dismiss the 1980 action upon the ground of res judicata.
Supreme Court erred in denying the cross motion. The causes of action alleged in the 1980 and 1984 actions arose out of the same transaction or series of transactions. By reason of the summary dismissal of the 1984 action, the doctrine of res judicata operated as a bar to further maintenance of the 1980 action (see, Matter of Hodes v. Axelrod, 70 N.Y.2d 364, 372-373; O'Brien v. City of Syracuse, 54 N.Y.2d 353, 357-358; Smith v. Russell Sage Coll., 54 N.Y.2d 185, 192-193, rearg denied 55 N.Y.2d 878). Accordingly, the complaint against defendant Paul Hill should have been dismissed.