Lamar Outdoor Advertising, Inc. v. City Planning Commission

Appeal from an order and judgment (one document) of Supreme Court, Onondaga County (Murphy, J.), entered March 16, 2001, which, inter alia, granted the motion of defendants City Planning Commission of [842] Syracuse and City of Syracuse seeking summary judgment dismissing the complaint against them. 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: 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 plaintiffs 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 AD2d 972, lv denied 94 NY2d 763). 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 AD2d 786, 787; Van Dussen-Storto Motor Inn v Rochester Tel. Corp., 63 AD2d 244, 249). There is no merit to plaintiffs remaining contentions. We therefore modify the order and judgment by denying the motion of defendants, reinstating the complaint against them and vacating the injunction. Present— Pigott, Jr., P.J., Green, Hurlbutt, Scudder and Burns, JJ.