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MERCURY CAPITAL CORPORATION, respondent, v. SHEPHERD'S BEACH, INC., appellant, ET AL., defendants.

DECISION ORDER

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

A prior action for the same relief was dismissed as time-barred (see Mercury Capital Corp. v. Shepherds Beach, 281 A.D.2d 604). Dismissal of the prior action constituted an adjudication on the merits (see Smith v. Russell Sage Coll., 54 N.Y.2d 185, 194) which barred relitigation of matters which could have or should have been raised in the prior action (see Harley v. Hawkins, 281 A.D.2d 593). Contrary to the plaintiff's contention, the issues raised in the instant action could have and should have been raised in that prior action.

The plaintiff's remaining contentions are without merit.

FLORIO, J.P., FEUERSTEIN, McGINITY and ADAMS, JJ., concur.

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MERCURY CAPITAL CORP. v. SHEPHERD'S BEACH
(May 12, 2003)