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A DISMISSAL BASED UPON PLAINTIFF’S FAILURE TO APPEAR TO OPPOSE A MOTION TO DISMISS IS NOT A DETERMINATION ON THE MERITS AND THEREFORE HAS NO RES JUDICATA EFFECT (SECOND DEPT).

The Second Department, reversing Supreme Court, noted that the prior dismissal of plaintiff’s action because the plaintiff failed to appear in opposition to defendants’ motion to dismiss was not a determination on the merits and therefore has no res judicata effect:

The plaintiff had commenced a prior action against, among others, the defendants, and the complaint in that action was dismissed insofar as asserted against them upon the plaintiff’s failure to appear in opposition to their motion to dismiss. An order entered upon a party’s default in appearing to oppose a motion to dismiss is not a determination on the merits … . Where a dismissal does not involve a determination on the merits, the doctrine of res judicata does not apply … . Accordingly, the doctrine of res judicata does not apply to bar the instant action … . Abdelfattah v Najar, 2019 NY Slip Op 04346, Second Dept 6-5-19

 

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THE DEFENDANTS’ PRE-ANSWER MOTION TO DISMISS EXTENDED THE TIME FOR PLAINTIFFS TO AMEND THE COMPLAINT AS A MATTER OF RIGHT UNTIL TEN DAYS AFTER SERVICE OF THE NOTICE OF ENTRY OF THE ORDER DETERMINING THE MOTION (SECOND DEPT).
FOOT OF A DECORATIVE FENCE OVER WHICH PLAINTIFF TRIPPED WAS OPEN AND OBVIOUS AS A MATTER OF LAW.
HOMEOWNER’S EXCEPTION APPLIED TO HOMEOWNER BUT NOT TO AGENT OF HOMEOWNER WHO SUPERVISED THE WORK.
BUILDING OWNERS’ MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED IN THIS WET-FLOOR SLIP AND FALL CASE (SECOND DEPT).
ALTHOUGH THE PLANNING BOARD HELD THAT IT HAD JURISDICTION OVER THE PROPOSED DEVELOPMENT, A FINDING WITH WHICH PETITIONERS DISAGREED, THE BOARD ALSO HELD THE PETITIONERS COULD APPLY FOR A HARDSHIP EXEMPTION WHICH WAS NOT DONE, THE ACTION IS THEREFORE PREMATURE (SECOND DEPT).
NECESSARY EXPERT EVIDENCE WAS NOT PRESENTED BY THE PLAINTIFF IN THIS ARCHITECT MALPRACTICE CASE, THE ARCHITECT’S MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT).
ALTHOUGH PLAINTIFF CROSSED INTO DEFENDANT’S ONCOMING LANE TO PASS A MAIL TRUCK, DEFENDANT WAS NOT ENTITLED TO SUMMARY JUDGMENT; THERE WAS A QUESTION OF FACT WHETHER DEFENDANT REACTED REASONABLY TO AN EMERGENCY; TWO OTHER CARS HAD ENTERED DEFENDANT’S LANE TO GO AROUND THE TRUCK JUST BEFORE THE COLLISION (FOURTH DEPT).
HOSPITAL DID NOT DEMONSTRATE THE TREATING EMERGENCY PHYSICIAN WAS NOT AN EMPLOYEE AND DID NOT DEMONSTRATE THE EMERGENCY PHYSICIAN DID NOT DEPART FROM ACCEPTED STANDARDS OF MEDICAL CARE; THE HOSPITAL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

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