This section contains the nature of the case and procedural background.

In 1973, Ps commenced an article 78 proceeding which was dismissed for failure to establish a de facto taking. D took title to the property by issuing to itself a tax deed. In March 1978, P's filed the same suit but this time adding general statements that Ds 'wrongfully, unlawfully and willfully' trespassed upon the property at various times during the period 1967 to 1978 and that the property was damaged during these numerous intrusions. Ds moved to dismiss on the grounds of res judicata, Statute of Limitations and failure to serve a timely notice of claim. The Supreme Court determined that the actions involved materially different elements of proof for the two theories of recovery, and calculated the time from June 1, 1977, when the tax deed was executed and ruled that the action was not time-barred. The Appellate Division reversed on the ground that the entire action was barred by the doctrine of res judicata.

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