IN RE: CITY OF NEW YORK (2008)

In a summary dispossess proceeding and a related holdover proceeding, John Schmitt and Adam Schmitt, d/b/a Channel Marine Suzsucki and Schmitt's Marina, Adam Schmitt, d/b/a Adams Fishing Station, and Channel Marine Sales, Inc., appeal, by permission, as limited by their brief, from so much of an order of the Appellate Term of the Supreme Court for the Second and Eleventh Judicial Districts dated May 1, 2006, as (1) reversed so much of an order of the Civil Court, Queens County (Gottlieb, J.), dated September 24, 2004, as denied those branches of the petitioner's cross motion in Proceeding No. 1 which were for summary judgment on its causes of action for possession of the real property and to recover use and occupancy and thereupon granted those branches of the cross motion, and (2) reversed so much of an order of the same court also dated September 24, 2004, as denied those branches of the petitioner's cross motion in Proceeding No. 2 which were for summary judgment on its causes of action for possession of the real property and to recover use and occupancy and thereupon granted those branches of the cross motion.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The parties' respective rights to the subject properties were fully litigated and finally determined in a previous action (see United States v. Schmitt, 999 F.Supp. 317, affd. 28 Fed.Appx. 63). Under the doctrine of res judicata, a final disposition on the merits bars litigation between the same parties of all other claims arising out of the same transaction or out of the same or related facts, even if based upon a different theory involving materially different elements of proof (see O'Brien v. City of Syracuse, 54 N.Y.2d 353, 357-358, 445 N.Y.S.2d 687, 429 N.E.2d 1158;  Sterngass v. Soffer, 27 A.D.3d 549, 810 N.Y.S.2d 362;  Town of New Windsor v. New Windsor Volunteer Ambulance Corps, Inc., 16 A.D.3d 403, 404-405, 791 N.Y.S.2d 159).   The rule applies not only to claims litigated but also to claims that could have been raised in the prior litigation (see Matter of Hunter, 4 N.Y.3d 260, 269, 794 N.Y.S.2d 286, 827 N.E.2d 269;  Hyman v. Hillelson, 55 N.Y.2d 624, 446 N.Y.S.2d 251, 430 N.E.2d 1304;  Solow v. Liebman, 253 A.D.2d 808, 809, 677 N.Y.S.2d 622).

Accordingly, the Appellate Term correctly determined that, consistent with the holding in United States v. Schmitt, 999 F.Supp. 317, affd. 28 Fed.Appx. 63, the petitioner, City of New York, established its entitlement to judgment as a matter of law awarding it possession of the subject properties and the appellants' assertion of defenses, which were previously litigated or could have been litigated in the prior action, was insufficient to raise a triable issue of fact.