Opinion
2002-06326
Argued March 4, 2003.
May 12, 2003.
In an action, inter alia, to enjoin the defendants from taking action in reliance upon a determination of the Board of Zoning Appeals of the Town of Huntington dated August 17, 2000, granting the defendants Jordan Iserman and BT SH Restaurant Corp., d/b/a The Inn on the Harbor certain variances, the plaintiffs appeal from a judgment of the Supreme Court, Suffolk County (Emerson, J.), entered June 18, 2002, which, upon an order of the same court dated May 16, 2002, granting the defendants' separate motions pursuant to CPLR 3211(a)(5) to dismiss the complaint, is in favor of the defendants and against them dismissing the complaint.
Meyer, Suozzi, English Klein, P.C., Mineola, N.Y. (A. Thomas Levin and Jayson J. R. Choi of counsel), for appellants.
Berkman, Henoch, Peterson Peddy, P.C., Garden City, N.Y. (Peter Sullivan of counsel), for respondent Board of Zoning Appeals of Town of Huntington.
Caputi, Weintraub Neary, Huntington, N.Y. (Gary N. Weintraub of counsel), for respondent BT SH Restaurant Corp., d/b/a The Inn on the Harbor.
Before: DAVID S. RITTER, J.P., FRED T. SANTUCCI, SANDRA J. FEUERSTEIN, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed, with one bill of costs to the defendants Board of Zoning Appeals of the Town of Huntington and BT SH Restaurant Corp., d/b/a The Inn on the Harbor.
The plaintiffs commenced a proceeding pursuant to CPLR article 78 in the Supreme Court, Suffolk County, entitled Matter of Franco v. Manzi under Index No. 27220/00 to challenge the granting of certain variances by the Board of Zoning Appeals of the Town of Huntington (hereinafter the Board), on August 17, 2000, for the expansion of a restaurant owned by BT SH Restaurant Corp., d/b/a The Inn on the Harbor (hereinafter the Inn). That proceeding was dismissed on the grounds that the plaintiffs (the petitioners therein) failed to join the Inn and the property owner, Jordan Iserman, as necessary parties and that the statute of limitations had expired. In this action, commenced on September 27, 2001, the plaintiffs seek a judgment declaring that the determination by the Board on August 17, 2000, was null and void for lack of jurisdiction.
A dismissal on statute of limitations grounds is considered a dismissal on the merits for claim preclusion purposes and bars a second action (see Smith v. Russell Sage Coll., 54 N.Y.2d 185, 194; Matter of Karmel v. Delfino, 293 A.D.2d 473; Matter of Lake Anne Realty Corp. v. Planning Bd., Town of Blooming Grove, 262 A.D.2d 413, 414). The Supreme Court therefore properly determined that the instant action is barred by the doctrine of res judicata since the plaintiffs could have raised the present claims in the prior CPLR article 78 proceeding (see Incorporated Vil. of Laurel Hollow v. Nichols, 260 A.D.2d 439). "[O]nce a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy" (O'Brien v. City of Syracuse, 54 N.Y.2d 353, 357; see also Smith v. Russell Sage Coll., supra; Couri v. Westchester Country Club, 186 A.D.2d 715).
In light of the foregoing, we do not reach the plaintiffs' remaining contention.
RITTER, J.P., SANTUCCI, FEUERSTEIN and SCHMIDT, JJ., concur.