Opinion
July 12, 1996
Appeal from the Supreme Court, Onondaga County, Major, J.
Present — Denman, P.J., Pine, Fallon, Callahan and Balio, JJ.
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 plaintiff's driveway encroached onto defendants' property was never determined in the prior action between these parties ( North v. Murtaugh, 212 A.D.2d 1072). Thus, the doctrine of res judicata is inapplicable ( see, Board of Educ. v. Buffalo Teachers Fedn., 217 A.D.2d 366, 373, lv granted 88 N.Y.2d 802; Matter of Falcon v. Accardi, 193 A.D.2d 1063, 1064).
The court erred, however, in denying that part of defendants' motion seeking to vacate the note of issue and certificate of readiness because defendants demonstrated that the case is not ready for trial ( see, 22 NYCRR 202.21 [e]). "In the circumstances presented, defendants have not had a reasonable opportunity to complete discovery" ( Blais Constr. Co. v. Hanover Sq. Assocs.-One, 147 A.D.2d 901; see, Najjar v. National Kinney Corp., 89 A.D.2d 845). Therefore, we modify the order by granting in part defendants' motion and vacating the note of issue and certificate of readiness, and otherwise affirm.