Hyman v. Hillelson

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

The factual context in which this case arises is set forth in the memorandum at the Appellate Division ( 79 AD2d 725 ). When in 1974 plaintiffs unsuccessfully brought an action against the present defendants (and others) asserting claims to ownership of the property in Fulton County, they then predicated their right to recovery on the equitable remedy of contract reformation. When they thereafter instituted the present action in 1979 asserting a right to a substantial portion of the same property they grounded their claim on the theory of adverse possession, expressly recited to have commenced in and continued since 1955. As the Appellate Division correctly noted, this theory of recovery with respect to this property against these defendants was available to plaintiffs when they brought their 1974 action. Accordingly, it is now barred under recognized principles of claim preclusion (Matter of Reilly v Reid, 45 NY2d 24 ; Restatement, Judgments 2d [Tent Draft No. 5, 1978], §§ 61, 61.1).

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed, with costs, in a memorandum.