Megibow v. Condominium Board of the Kips Bay Towers Condominium, Inc.

38 A.D.3d 265, 831 N.Y.S.2d 174

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 8, 2007
• Status: Published

Opinion

Order, Supreme Court, New York County (Marilyn Shafer, J.), entered June 14, 2005, which granted defendant’s motion for summary judgment and denied plaintiffs motion to lift a stay of disclosure, unanimously affirmed, with costs.

Defendant was not barred by res judicata from requiring plaintiff to comply with the dog registration policy, by virtue of the stipulation of discontinuance with prejudice in the prior action. There, defendant had sought to enjoin plaintiff from harboring a dog in his apartment in violation of the condominium rules and regulations. The effect of the discontinuance was to permit plaintiff to harbor his dog. As the court found, the issue of whether the dog registration policy applies to plaintiff was neither litigated in the prior action nor settled under the stipulation (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304 [1929]; Aquilina v O’Connor, 59 AD2d 454, 457 [1977]).

The court properly dismissed plaintiffs declaratory judgment claim with respect to certain enforcement protocols of defendant’s policy prohibiting the harboring of dogs. Since plaintiff was harboring his dog with permission, there was no justiciable controversy (see Sokoloff v Town Sports Intl., 6 AD3d 185, 186 [2004]).

The court properly found that plaintiff offered no basis for lifting the stay of further discovery (see Matter of Venner, 235 AD2d 805, 809 [1997]). Concur—Mazzarelli, J.P., Sullivan, Sweeny, Catterson and McGuire, JJ.