Dismissal of Complaint “With Prejudice” Did Not Require Dismissal of Second Complaint

Even though a complaint had ostensibly been dismissed “with prejudice” because the plaintiff did not have the capacity to sue, a subsequent complaint brought after plaintiff gained capacity to sue could not be dismissed pursuant to res judicata or collateral estoppel:

The record makes clear that, notwithstanding its denomination of the dismissal of the first action as “with prejudice,” the Supreme Court did not intend to preclude the plaintiff from commencing a new action once he acquired the capacity to sue, which he purportedly lacked when he commenced the first action (see CPLR 3211[a][3]). Consequently, as the Supreme Court stated in the order appealed from, the dismissal of the first action was not a final judgment on the merits and it was not preclusive, under either res judicata or collateral estoppel, of claims or issues in the present action …. Thus, the court properly granted that branch of the plaintiff’s motion which was to dismiss the affirmative defenses of res judicata and collateral estoppel. Brown v Lutheran Med Ctr, 2013 NY Slip Op 04568, 2nd Dept, 6-19-13