
    Robert W. Cronin et al., Respondents, v Joseph A. Gallerie et al., Appellants.
   — Appeal from an order of the Supreme Court at Special Term, entered October 23, 1978 in Ulster County, which denied defendants’ motion to dismiss the complaint. The plaintiffs commenced an action on or about April 8, 1978 against the defendants. The defendants moved, pursuant to CPLR 3211 (subd [a], pars 2, 5), to dismiss the complaint upon the ground that the court did not have jurisdiction of the subject matter of the controversy and/or that the cause of action was not maintainable because the defendant, Joseph A. Gallerie, had been discharged in bankruptcy. That motion was granted by the Supreme Court at Special Term in Ulster County, and a judgment was entered on August 11, 1978, dismissing the complaint. The plaintiffs’ counsel apparently had intended to oppose the motion for dismissal, but failed to do so for reasons set forth in his affirmation, dated October 1, 1978. Subsequently, the plaintiffs’ counsel learned of the court’s decision to grant the motion to dismiss and instead of moving to vacate the order or to vacate the judgment, he caused the present action to be commenced on August 8, 1978. This action is identical to the prior action and defendants have moved to dismiss pursuant to CPLR 3211 (subd [a], par 5) upon the ground that the prior dismissal of the complaint is res judicata. Whether or not the plaintiffs litigated the issue of a bar to the proceeding because of a lack of subject matter jurisdiction and/or bankruptcy, it is apparent that they had the opportunity. The outstanding order and judgment dismissing the complaint is final and binding as between the parties and the present proceeding must be dismissed (Spindell v Brooklyn Jewish Hosp., 35 AD2d 962, affd 29 NY2d 888). Order reversed, on the law, with costs; motion granted and complaint dismissed. Mahoney, P. J., Sweeney, Kane, Staley¡ Jr., and Herlihy, JJ., concur.  