Opinion
November 19, 1993
Appeal from the Supreme Court, Onondaga County, Hayes, J.
Present — Callahan, J.P., Pine, Balio, Doerr and Boomer, JJ.
Order unanimously reversed on the law without costs, motion denied, cross motion granted, and complaint and lis pendens reinstated. Memorandum: The court erred in granting defendant Wilson's motion for summary judgment dismissing the complaint, vacating the lis pendens filed against the real property at issue, and denying plaintiff's cross motion to dismiss defendant Wilson's affirmative defense of res judicata. Defendant Wilson's motion, which was based on that affirmative defense, relied on the denial of plaintiff's motion for a temporary injunction in another action. Defendant Wilson failed to establish that the action has been dismissed and plaintiff avers that it is still pending; thus, the doctrine of res judicata does not apply (see, 9 Carmody-Wait 2d, N Y Prac § 63:430; cf., Ashcraft Excavating Co. v Clark, 79 A.D.2d 722, lv denied 52 N.Y.2d 705).