Mercury Capital Corp. v. Shepherds Beach, Inc.
758 N.Y.S.2d 843
N.Y. App. Div.
2003
Check Treatment

—In an action to foreclose a mortgage, the defendant Shepherds Beach, Inc., appeals from an order of the Supreme Court, Suffolk County (Baisley, J.), entered October 30, 2002, which denied its motion pursuant to CPLR 3211 (a) (5) to dismiss the complaint on the ground that the action was barred by res judicata.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

A prior action for the same relief was dismissed as time-barred (see Mercury Capital Corp. v Shepherds Beach, 281 AD2d 604 [2001]). Dismissal of the prior action constituted an adjudication on the merits (see Smith v Russell Sage Coll., 54 NY2d 185, 194 [1981]) which barred relitigation of matters which could have or should have been raised in the prior action (see Harley v Hawkins, 281 AD2d 593 [2001]). Contrary to the plaintiffs contention, the issues raised in the instant action could have and should have been raised in that prior action.

The plaintiffs remaining contentions are without merit. Florio, J.P., Feuerstein, McGinity and Adams, JJ., concur.