Titus Mill Pond, Inc. v. Board of Trustees

60 A.D.2d 868, 401 N.Y.S.2d 263, 1978 N.Y. App. Div. LEXIS 9904

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 16, 1978
• Status: Published

Opinion

In an action to declare the plaintiff to be the sole owner in fee of certain underwater lands, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County, entered March 8, 1977, as (1) denied its motion for summary judgment and (2) granted plaintiff’s cross motion for partial summary judgment to the extent of dismissing defendant’s first affirmative defense, i.e., res judicata. Order modified, on the law, by deleting from the second and third decretal paragraphs thereof the provisions granting the motion to dismiss the first affirmative defense contained in the defendant’s answer and by substituting therefor provisions that the branch of the motion which seeks dismissal of that affirmative defense is denied. As so modified, order affirmed, without costs or disbursements. In our view there are substantial triable issues of fact pertaining to the establishment of the affirmative defense of res judicata which preclude the granting of judgment in the defendant’s favor as a matter of law. Latham, J. P., Damiani, Cohalan and Hawkins, JJ., concur.