Falco v. Town of Islip

Appellate Division of the Supreme Court of New York

Falco v. Town of Islip

289 A.D.2d 490, 734 N.Y.S.2d 643, 2001 N.Y. App. Div. LEXIS 12981

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 24, 2001

StatusPublished

Cited by4 cases

This text of 289 A.D.2d 490 (Falco v. Town of Islip) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Falco v. Town of Islip, 289 A.D.2d 490, 734 N.Y.S.2d 643, 2001 N.Y. App. Div. LEXIS 12981 (N.Y. Ct. App. 2001).

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Opinion

In a proceeding pursuant to CPLR article 78, inter alia, to review a determination of the respondent Town of Islip, dated March 15, 2000, which denied the petitioner’s application for a building permit to construct a single-family dwelling on her property, the appeal is from a judgment of the Supreme Court, Suffolk County (Costello, J.), dated September 27, 2000, which denied the petition and dismissed the proceeding.

Ordered that the judgment is affirmed, with costs.

The Supreme Court properly dismissed the proceeding on the ground of res judicata. The current proceeding is merely the “renewal of issue [s] actually litigated and resolved in * * * prior proceeding [s] as well as claims for different relief which arise out of the same ‘factual grouping’ or ‘transaction’ and which should have or could have been resolved in the prior proceeding^]” (Ordenana v Weber, 269 AD2d 580, 581, quoting D.C.I. Danaco Contrs. v Associated Univs., 248 AD2d 663; see, Matter of Falco v Town of Islip Zoning Bd. of Appeals, 283 AD2d 576; Koether v Generalow, 213 AD2d 379).

In particular, there is no merit to the petitioner’s contention that in a prior proceeding pursuant to CPLR article 78 the Supreme Court, and subsequently on appeal this Court, failed [491]*491to consider the report of her inspector, who concluded that “no wetland impacts are expected” from, the proposed structure application. The parties, property, issues, facts, and relief sought in the petitioner’s previous application for an area variance are essentially identical to the present application, and the inspector’s report submitted by the petitioner only enhances the quality and amount of proof submitted. Thus, “the commencement of [this] proceeding simply to cure defects in the proof and to improve the quality thereof is not a distinction which precludes the application of res judicata” (Matter of Freddolino v Village of Warwick Zoning Bd. of Appeals, 192 AD2d 839, 840; cf., Jensen v Zoning Bd. of Appeals, 130 AD2d 549).

The petitioner’s remaining contentions are without merit. O’Brien, J. P., Santucci, Florio and Schmidt, JJ., concur.

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In a proceeding pursuant to CPLR article 78, inter alia, to review a determination of the respondent Town of Islip, dated March 15, 2000, which denied the petitioner’s application for a building permit to construct a single-family dwelling on her property, the appeal is from a judgment of the Supreme Court, Suffolk County (Costello, J.), dated September 27, 2000, which denied the petition and dismissed the proceeding.

Ordered that the judgment is affirmed, with costs.

The Supreme Court properly dismissed the proceeding on the ground of res judicata. The current proceeding is merely the “renewal of issue [s] actually litigated and resolved in * * * prior proceeding [s] as well as claims for different relief which arise out of the same ‘factual grouping’ or ‘transaction’ and which should have or could have been resolved in the prior proceeding^]” (Ordenana v Weber, 269 AD2d 580, 581, quoting D.C.I. Danaco Contrs. v Associated Univs., 248 AD2d 663; see, Matter of Falco v Town of Islip Zoning Bd. of Appeals, 283 AD2d 576; Koether v Generalow, 213 AD2d 379).

In particular, there is no merit to the petitioner’s contention that in a prior proceeding pursuant to CPLR article 78 the Supreme Court, and subsequently on appeal this Court, failed [491]*491to consider the report of her inspector, who concluded that “no wetland impacts are expected” from, the proposed structure application. The parties, property, issues, facts, and relief sought in the petitioner’s previous application for an area variance are essentially identical to the present application, and the inspector’s report submitted by the petitioner only enhances the quality and amount of proof submitted. Thus, “the commencement of [this] proceeding simply to cure defects in the proof and to improve the quality thereof is not a distinction which precludes the application of res judicata” (Matter of Freddolino v Village of Warwick Zoning Bd. of Appeals, 192 AD2d 839, 840; cf., Jensen v Zoning Bd. of Appeals, 130 AD2d 549).

The petitioner’s remaining contentions are without merit. O’Brien, J. P., Santucci, Florio and Schmidt, JJ., concur.

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Bluebook (online)

289 A.D.2d 490, 734 N.Y.S.2d 643, 2001 N.Y. App. Div. LEXIS 12981, Counsel Stack Legal Research, https://law.counselstack.com/opinion/falco-v-town-of-islip-nyappdiv-2001.

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