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