Parolisi v. SlavinParolisi v. Slavin
Upon the papers filed in support of the motions and the cross motion, and the papers filed in opрosition thereto, it is
Ordered that the motion of the respondent-appellant and the cross motion of the appellant-respondent are denied; and it is further,
Ordered that the motion of the appellant-respondent is granted and, upon reargument, the decision and order of this Court dated April 10, 2012 (Parolisi v Slavin, 94 AD3d 840 [2012]), is recalled and vacated, and the following decision and order is substituted therefor:
In an action for injunctive relief, the defendant appeals, as limited by her brief, from so much of an order of thе Supreme Court, Nassau County (Galasso, J.), dated September 28, 2011, as granted the motion of the plaintiff James Parolisi for a preliminary injunction enjoining the defendant from moving structures, equipment, materials and other items through the air space above his rеal property and above the ingress and egress easement across his real property, and the plaintiff James Parolisi cross-appeals from so much of the same order as fixed an undertaking pursuant to
Ordered that the order is reversed insofar as appealed from, on the law, and the motion of the plaintiff James Parolisi for a preliminary injunction is deniеd; and it is further,
Ordered that the order is affirmed insofar as cross-appealed from; and it is further,
In 2009 the defendant requested approval from the Zoning Board of Appeals of the City of Long Beach (hereinafter the ZBA) for variances which would permit hеr to reconstruct the first floor of her beachfront bungalow and construct a second-story addition. After a hearing, and upon review of submissions from those opposed to the project, the ZBA granted the variances. Thereafter, the owners of the two separate parcels of real property adjacent to the defendant‘s parcel commеnced a hybrid
Thereafter, the owners of one of the adjacent parcels sold that parсel to the plaintiff James Parolisi (hereinafter the plaintiff). Shortly after construction began on the defendant‘s property, the plaintiff commenced this action for permanent injunctive relief enjoining the defendant from moving structures, equipment, mаterials and other items through the air space over his property and above the ingress and egress easement across his property. The new owners of the other adjacent property, James Margiotta and Nicole Margiotta, сommenced a similar action against the defendant, which was consolidated with the instant action, but they later settled their сlaims against the defendant. After a hearing, the Supreme Court granted the plaintiff‘s motion for a preliminary injunction, rejecting thе defendant‘s argument that this action is barred by the doctrine of res judicata, and set an undertaking in the sum of $750,000.
Under New York‘s transactiоnal approach to the doctrine of res judicata, “once 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 theоries or if seeking a different remedy” (O‘Brien v City of Syracuse, 54 NY2d 353, 357 [1981]; see Matter of Calapai v Zoning Bd. of Ap-peals of Vil. of Babylon, 57 AD3d 987, 989 [2008]; Matter of Palm Mgt. Corp. v Goldstein, 29 AD3d 801, 804 [2006], affd on other grounds 8 NY3d 337 [2007]; Town of Wallkill v Lachmann, 27 AD3d 724, 725 [2006]). The doctrine not only applies to the parties of record in the prior actiоn, but also to those in privity with them (see Watts v Swiss Bank Corp., 27 NY2d 270, 277 [1970]; Djoganopoulos v Polkes, 67 AD3d 726, 727 [2009]; Matter of State of New York v Seaport Manor A.C.F., 19 AD3d 609, 610 [2005]; Bay Shore Family Partners v Foundation of Jewish Philanthropies of Jewish Fedn. of Greater Fort Lauderdale, 270 AD2d 374, 375 [2000]). Here, the causes of action asserted by the plaintiff are barred by the doctrine of res judicata, as he is in рrivity with the prior owners, who could have asserted these causes of action in the prior action (see Union St. Tower, LLC v Richmond, 84 AD3d 784, 786 [2011]; Jennings v City of Glens Falls Indus. Dev. Agency, 9 AD3d 773, 774 [2004]). Since the рlaintiff‘s causes of action are barred by the doctrine of res judicata, the plaintiff failed to demonstrate a likelihоod of success on the merits, and, accordingly, his motion for a preliminary injunction should have been denied (see Blinds & Carpet Gallery, Inc. v E.E.M. Realty, Inc., 82 AD3d 691, 692 [2011]; Shasho v Pruco Life Ins. Co. of N.J., 67 AD3d 663, 665 [2009]; Tatum v Newell Funding, LLC, 63 AD3d 911, 912 [2009]).
Contrary to the plaintiff‘s contention on his cross appeal, the Supreme Court providently exercised its discretion in directing him to рost an undertaking pursuant to
In light of our determination, we need not reach the defendant‘s remaining contentions. Angiolillo, J.P., Belen, Lott and Miller, JJ., concur.