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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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