Nesbitt v. Penalver

Jan 24, 2007

OUTCOME: Affirmed for Defendant

Haque v Rob

N/A

OUTCOME: Order of Dismissal Reversed On Appeal

The Supreme Court improperly granted that branch of the defendant's motion which was to dismiss the complaint on the ground that it was barred by the doctrine of res judicata based upon a judgment of p ... ossession for the real property at issue in this action that resolved an earlier related holdover proceeding between the parties. RPAPL 747(2) was enacted, in part, to overrule the harsh effect of the doctrine of res judicata in the limited situation where the restrictions on the Civil Court's jurisdiction, such as its inability to determine issues of title, prevent a party from seeking affirmative equitable relief in the context of a summary holdover proceeding (see Henry Modell & Co. v Minister, Elders & Deacons of Ref. Prot. Dutch Church of City of N.Y., 68 NY2d 456, 462; Nissequogue Boat Club v State of New York, 14 AD3d 542). Where, as here, an action requiring the determination of title has been commenced within 60 days of entry of the judgment in a holdover proceeding, that judgment does not bar the action (see RPAPL 747[2]).