North v. Murtaugh

—Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court properly denied that part of the motion of Richard Murtaugh and Gail Murtaugh (defendants) seeking to dismiss this action as barred by the doctrine of res judicata. The precise issue whether plaintiffs driveway encroached onto defendants’ property was never determined in the prior action between these parties (North v Murtaugh, 212 AD2d 1072). Thus, the doctrine of res judicata is inapplicable (see, Board of Educ. v Buffalo Teachers Fedn., 217 AD2d 366, 373, Iv granted 88 NY2d 802; Matter of Falcon v Accardi, 193 AD2d 1063, 1064).

The court erred, however, in denying that part of defendants’ motion seeking to vacate the note of issue and certificate of readiness because defendants demonstrated that the case is not ready for trial (see, 22 NYCRR 202.21 [e]). "In the circumstances presented, defendants have not had a reasonable opportunity to complete discovery” (Blais Constr. Co. v Hanover Sq. Assocs.-One, 147 AD2d 901; see, Najjar v National Kinney Corp., 89 AD2d 845). Therefore, we modify the order by granting in part defendants’ motion and vacating the note of issue and certificate of readiness, and otherwise affirm. (Appeal from Order of Supreme Court, Onondaga County, Major, J.—Dismiss Complaint.) Present—Denman, P. J., Pine, Fallon, Callahan and Balio, JJ.