Fontana v. Fontana

Order unanimously reversed, without costs, motion granted and complaint dismissed. Memorandum: On May 5, 1980 plaintiff commenced an action for divorce against defendant on the ground of cruel and inhuman treatment. Plaintiff had previously brought a divorce action on the same ground in which, after, coming to trial on March 12, 1980, the complaint was dismissed with prejudice and on .the merits. The judgment dismissing plaintiff’s first action is res judicata and bars litigation of issues which were or could have been raised in the first action (see Schuykill Fuel Corp. v Nieberg Realty Corp., 250 NY 304; Jorgensen v Jorgensen, 76 AD2d 828). (Appeal from order of Monroe Supreme Court —summary judgment.) Present—Hancock, Jr., J. P., Schnepp, Callahan, Doerr and Moule, JJ.