Biviano v. Portelli

Cross appeals from an order of the Supreme Court at Special Term, entered February 28, 1974 in Chenango County, which granted the defendants’ motion for summary judgment dismissing the complaint, and also granted the plaintiffs’ motion for a dismissal of the defendants’ counterclaims. The plaintiffs in 1969 commenced an action which sought to establish the boundary line between their premises and the defendants. Pursuant to the provisions of CPLR 3211 (subd. [c]), the 1969 complaint was dismissed by an order of the court entered in Chenango County on January 16, 1970. It is apparent from a reading of the decision rendered by the court on January 12, 1970 that the dismissal of the 1969 complaint was on the merits. Furthermore, it is apparent that the prior action in 1969 involved the same issues as the present complaint and, accordingly, Special Term properly dismissed the present complaint on the basis of res juclie.ata. The defendants in their brief state that their appeal from the dismissal of their counterclaim is withdrawn if the dismissal of the plaintiffs’ complaint is affirmed. Order affirmed, without costs. Herlihy, P. J., Greenblott, Sweeney, Kane and Main, JJ., concur.