Conte v. City of New York

294 A.D.2d 109, 741 N.Y.S.2d 403, 2002 N.Y. App. Div. LEXIS 4336

Opinion

—Order, Supreme Court, Bronx County (Stanley Green, J.), entered on or about January 23, 2001, which granted defendant’s motion to dismiss the complaint on grounds of res judicata and collateral estoppel, unanimously affirmed, without costs.

While defendant’s motion, denominated as one for summary judgment, should have been treated as a motion pursuant to CPLR 3211, in light of defendant’s failure to file an answer (see, Goldfeld v Mattoon Communications Corp., 99 AD2d 711, 712, appeal dismissed 62 NY2d 802), the issues of res judicata, collateral estoppel and the statute of limitations were nonetheless properly before the court (see, CPLR 3211 [a] [5]; [e]) and properly addressed on the merits. This action, seeking damages for the demolition of plaintiffs building, demolished by defendant pursuant to a court order issued in an unsafe building proceeding, was correctly found by the motion court to be barred by the doctrines of collateral estoppel and res judicata, inasmuch as plaintiffs present claim was determined against her in now-concluded condemnation proceedings (see, Buechel v Bain, 97 NY2d 295). We note, as did the motion court, that even if the action were not precluded under the doctrines of res judicata and collateral estoppel, its dismissal would nonetheless be mandated since it is time-barred by reason of plaintiffs failure to serve and file a timely notice of claim pursuant to General Municipal Law § 50-e (1). Concur—Saxe, J.P., Buckley, Rosenberger, Friedman and Marlow, JJ.