I respectfully dissent. The case of Matter of Hodes v Axelrod (56 NY2d 930) decided only that, under the then existing statutory framework of Public Health Law § 2806 (5) and former Correction Law § 701, the granting *79of a certificate of relief from disabilities and forfeitures to petitioners barred automatic revocation of their nursing home operating certificates. Subsequently, and in direct response to Hodes, the Legislature enacted amendments to both sections to authorize automatic license revocation despite the granting of such a certificate of relief and expressly made the amendments retroactive in application (L 1983, ch 584, § 3; see, Matter of Lap v Axelrod, 95 AD2d 457, 459, lv denied 61 NY2d 603).
Any doubt that the amendments were intended to apply retroactively as well to situations where, as here, a previous judicial annulment of such license revocation had taken place, is dispelled by the authoritative legislative history of the Laws of 1983 (ch 584). The executive memorandum of the sponsoring State agency explains that the bill was intended to overrule Hodes and cancel the effect of the subsequent cases where “the courts have now annulled revocations of eight operating certificates held by five felons” (State Department of Health memorandum, 1983 McKinney’s Session Laws of NY, at 2631). The memorandum goes on to state that the proposed amendments’ "limitation on the scope of the certificate of relief would resurrect the revocations previously imposed” (ibid.; emphasis supplied).
Thus, there can be no question that the amendments embodied in the 1983 enactment were intended to eliminate the res judicata effect of Matter of Hodes v Axelrod (supra) and of the decisions which followed it in annulling automatic license revocations because of former Correction Law § 701, and this court recognized that such was the legislative intent in Matter of Lap v Axelrod (95 AD2d 457, 458, supra). This being the case, we must uphold respondent’s revocation of petitioners’ operating certificates as authorized by the 1983 amendments unless there is some constitutional bar to doing so.
Contrary to the majority’s apparent conclusion, res judicata does not constitute independent constitutional protection of petitioners’ licenses as a result of the prior judicial annulment of the revocations in Hodes (supra). The United States Supreme Court and other Federal courts have repeatedly held that the doctrine of res judicata in all of its ramifications does not bar relitigation of issues and claims resolved by a prior judgment where, as here, the new action is based upon rights or claims created by subsequent changes in the law (see, Commissioner v Sunnen, 333 US 591, 599-601; State Farm Ins. Co. v Duel, 324 US 154, 162; Kirksey v City of Jackson, 714 *80F2d 42, 44; Jackson v DeSoto Parish School Bd., 585 F2d 726, 729; Moch v East Baton Rouge Parish School Bd., 548 F2d 594, 597, cert denied 434 US 859). These cases recognize that res judicata is not a constitutional doctrine, but a judicially created principle of public policy which is subject to legislatively created limitations. Put another way, in this situation the claims or rights asserted in the second litigation are based upon and created by the subsequent legislation, and, therefore, arise out of a "transaction” distinct from that involved in the prior action for res judicata purposes (Matter of Meegan S. v Donald T., 64 NY2d 751, 752; Matter of John P. v Whalen, 54 NY2d 89, 94).
Of course, a judgment in an earlier action may have created property rights which, under other constitutional principles (such as due process), cannot be impaired by retroactive application of subsequent legislation. However, neither Matter of Hodes v Axelrod (supra) nor the initial granting of petitioners’ operating certificates created any such property rights. It has long been settled law that petitioners have no vested property rights in their certificates, which are always subject to revocation (People ex rel. Lodes v Department of Health, 189 NY 187; Matter of Lap v Axelrod, supra, p 459). In holding that, under the then existing state of law, the Commissioner of Health had no statutory authority to revoke petitioners’ licenses, the Hodes decision did not create any vested right on behalf of petitioners preventing the Commissioner from invoking the statutory authority to revoke the licenses created by the subsequent enactment of the Laws of 1983 (ch 584). Accordingly, I would reverse and dismiss the petition.
Kane, Main and Yesawich, Jr., JJ., concur with Mahoney, P. J.; Levine, J., dissents and votes to reverse in an opinion.
Judgments affirmed, without costs.