LAMAR OUTDOOR ADVERTISING INC v. CITY PLANNING COMMISSION OF SYRACUSE (2002)

Supreme Court erred in granting the motion of the City Planning Commission of Syracuse (Planning Commission) and the City of Syracuse (defendants) seeking summary judgment dismissing the complaint against them based upon the doctrine of res judicata.   Plaintiff previously commenced a CPLR article 78 proceeding seeking to annul the determination of the Planning Commission rescinding plaintiff's permit to erect a billboard at 117 Butternut Street.   On a prior appeal we affirmed a judgment dismissing that proceeding (Matter of Lamar Outdoor Adv. v. City Planning Commn. of Syracuse, 267 A.D.2d 972, 700 N.Y.S.2d 893, lv. denied 94 N.Y.2d 763, 708 N.Y.S.2d 51, 729 N.E.2d 708).   Contrary to defendants' contention, that proceeding was timely commenced by the filing of the notice of petition and petition (see generally CPLR 304), and it was not dismissed as time-barred.   Rather, it was properly dismissed because the notice of petition was defective and insufficient to confer personal jurisdiction over the named respondents.   Because that proceeding was dismissed based upon petitioner's failure to obtain personal jurisdiction and was not dismissed as time-barred, the dismissal is not the equivalent of a final disposition on the merits and the doctrine of res judicata does not apply (see Kokoletsos v. Semon 176 A.D.2d 786, 787, 575 N.Y.S.2d 116;  Van Dussen-Storto Motor Inn v. Rochester Tel. Corp., 63 A.D.2d 244, 249, 407 N.Y.S.2d 287). There is no merit to plaintiff's remaining contentions.   We therefore modify the order and judgment by denying the motion of defendants, reinstating the complaint against them and vacating the injunction.

It is hereby ORDERED that the order and judgment so appealed from be and the same hereby is unanimously modified on the law by denying the motion of defendants City Planning Commission of Syracuse and City of Syracuse, reinstating the complaint against them and vacating the injunction and as modified the order and judgment is affirmed without costs.

MEMORANDUM.