North v. Murtaugh

—Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court properly denied that part of the motion of Richard Murtaugh and Gail Murtaugh (defendants) seeking to dismiss this action as barred by the doctrine of res judicata. The precise issue whether plaintiffs driveway encroached onto defendants’ property was never determined in the prior action between these parties (North v Murtaugh, 212 AD2d 1072). Thus, the doctrine of res judicata is inapplicable (see, Board of Educ. v Buffalo Teachers Fedn., 217 AD2d 366, 373,…