You are here: / / Dismissal for Failure to State a Cause of Action Is Not Given Res Judicata...

Dismissal for Failure to State a Cause of Action Is Not Given Res Judicata Effect

The Second Department noted that a dismissal for failure to state a cause of action is not a determination on the merits and will not be given res judicata effect:

“As a general rule, a dismissal for failure to state a cause of action is not on the merits and, thus, will not be given res judicata effect” … . Since the dismissal of the prior action was not on the merits, the Supreme Court should have denied that branch of the moving defendants’ motion which was pursuant to CPLR 3211(a)(5) to dismiss, on the ground of res judicata… . Hock v Cohen, 2015 NY Slip Op 01243, 2nd Dept 2-11-15

 

You might also like
MATTER REMITTED FOR A REOPENED SUPPRESSION HEARING BASED UPON NEW EVIDENCE THAT THE VEHICLE STOP MAY HAVE BEEN BASED UPON INFORMATION FROM AN ANONYMOUS BYSTANDER (SECOND DEPT).
MOTION TO SET ASIDE THE DAMAGES VERDICT IN THIS TRAFFIC ACCIDENT CASE AS INADEQUATE SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED UNLESS DEFENDANT STIPULATES TO INCREASED AWARDS FOR PAST AND FUTURE PAIN AND SUFFERING (SECOND DEPT). ​
FEE-SHARING AGREEMENT VIOLATED JUDICIARY LAW 491 AND COULD NOT BE ENFORCED BY A COURT (SECOND DEPT).
STATEMENT IN SUMMONS WITH NOTICE ABSOLUTELY PRIVILEGED.
NO ONE MOVED TO QUASH THE NONJUDICIAL SUBPOENA SERVED ON A NONPARTY; SUPREME COURT SHOULD HAVE GRANTED THE MOTION TO COMPEL THE NONPARTY’S APPEARANCE AT A DEPOSITION (SECOND DEPT).
QUESTION OF FACT WHETHER EMPLOYER VICARIOUSLY LIABLE FOR NEGLIGENCE OF AN INDEPENDENT CONTRACTOR.
DEFENDANT IN THIS FORECLOSURE ACTION UNSUCCESSFULLY RAISED USURY AS AN AFFIRMATIVE DEFENSE; DEFENDANT ARGUED THE BROKER’S COMMISSION, TITLE INSURANCE COST AND ATTORNEY’S FEE CONSTITUTED A COVER FOR USURY (SECOND DEPT).
THE PRE-ANSWER, PRE-DISCOVERY MOTION TO DISMISS SHOULD NOT HAVE BEEN CONVERTED TO A SUMMARY JUDGMENT MOTION; QUESTIONS OF FACT ABOUT WHETHER THERE WAS A DE FACTO MERGER OF TWO CORPORATIONS; QUESTION OF FACT WHETHER PART PERFORMANCE BY INACTION SATISFIED THE STATUTE OF FRAUDS (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Failure to Timely Respond to a Notice to Admit Not an Admission of the Matters... CPLR 5239 Is the Proper Vehicle for Vacation of an Execution—Here Defendant’s...