SCLAFANI v. STORY BOOK HOMES, INC

DECISION ORDER

ORDERED that the order is affirmed insofar as appealed from, with costs.

We agree with the Supreme Court that the third-party action is not barred by the doctrines of res judicata or collateral estoppel. Under the doctrine of res judicata, a final adjudication of a claim on the merits precludes relitigation of that claim and all claims arising out of the same transaction or series of transactions by a party or those in privity with a party (see Gramatan Home Investors Corp. v. Lopez, 46 N.Y.2d 481, 485; see also Winkler v. Weiss, 294 A.D.2d 428). Where a dismissal does not involve a determination on the merits, the doctrine of res judicata does not apply (see Maitland v. Trojan Elec. Mach. Co., 65 N.Y.2d 614; Hoey v. Kuchler, 249 A.D.2d 365). The Supreme Court properly concluded that the prior dismissal of a CPLR article 78 proceeding commenced by the plaintiff Dorothy Sclafani against the appellant was not a determination on the merits of the dispute between the parties.

The doctrine of collateral estoppel precludes a party from relitigating an issue identical to one previously raised and necessarily decided in another action, provided the party had a full and fair opportunity to litigate the issue (see Parker v. Blauvelt Volunteer Fire Co., 93 N.Y.2d 343, 349). The issues raised by the third-party complaint were not necessarily decided in the CPLR article 78 proceeding.

Contrary to the appellant's contention, the Supreme Court properly denied its motion for summary judgment dismissing the third-party complaint based on its affirmative defenses other than res judicata and collateral estoppel. The appellant did not make a prima facie showing of its entitlement to judgment as a matter of law based on those defenses.

The appellant's remaining contentions are without merit.

SANTUCCI, J.P., ALTMAN, S. MILLER and McGINITY, JJ., concur.