You are here: / / A DISMISSAL WITHOUT PREJUDICE IS NOT A FINAL DETERMINATION ON THE MERITS...
, ,

A DISMISSAL WITHOUT PREJUDICE IS NOT A FINAL DETERMINATION ON THE MERITS AND IS NOT SUBJECT TO THE DOCTRINE OF RES JUDICATA; ATTORNEY’S FEES ARE APPROPRIATE DAMAGES IN AN ACTION FOR BREACH OF A FORUM SELECTION CLAUSE (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s (Wormser’s) action for breach of the forum selection clause seeking attorney’s fees could go ahead. The defendant’s (L’Oreal’s) New Jersey action had been dismissed “without prejudice,” which was not a determination on the merits, and therefore Wormser’s action was not precluded by the res judicata doctrine:

Plaintiff (Wormser) asserts a claim for breach of the forum selection clause contained in the parties’ agreement, which requires disputes to be brought before the courts of New York City, and for attorneys’ fees incurred in the actions that defendant (L’Oréal) brought against it in New Jersey. After the New Jersey court had dismissed its complaint “with prejudice within the jurisdiction of New Jersey,” L’OrÉal commenced an action against Wormser in Supreme Court, New York County. Subsequently, a New Jersey appellate court amended the New Jersey trial court’s orders to make the dismissal “without prejudice” … , and Wormser brought this action.

Wormser’s claim is not barred by the doctrine of res judicata, because the dismissal was without prejudice by the New Jersey appellate court and therefore was not a final determination on the merits ,,, ,

Wormser’s claim for attorneys’ fees may proceed, as “damages may be obtained for breach of a forum selection clause, and an award of such damages does not contravene the American rule that deems attorneys’ fees a mere incident of litigation” … . Wormser Corp. v L’Oréal USA, Inc., 2022 NY Slip Op 03093, First Dept 5-10-22

Practice Point: A dismissal without prejudice is not a final determination on the merits and is not therefore subject to res judicata.

Practice Point: Attorney’s fees are properly demanded as damages in an action for breach of a forum selection clause.

 

You might also like
JUDGE FAILED TO MAKE IT CLEAR THAT ACQUITTAL ON THE TOP COUNT (ATTEMPTED MURDER) BASED ON SELF-DEFENSE REQUIRED ACQUITTAL ON ANY LESSER COUNT STEMMING FROM THE SAME CONDUCT; NEW TRIAL ORDERED.
RESPONDENT CITY DID NOT DEMONSTRATE THE FOIL REQUEST WOULD INTERFERE WITH LAW ENFORCEMENT OR JUDICIAL PROCEEDINGS OR WOULD REVEAL A CONFIDENTIAL SOURCE; MATTER REMITTED FOR IN CAMERA REVIEW TO DETERMINE WHETHER THE FOIL REQUEST WAS PROTECTED BY THE INTER- OR INTRA- AGENCY MATERIALS EXEMPTION (FIRST DEPT).
IN THIS DESIGN DEFECT PRODUCTS LIABILITY CASE, THE LOSS OF THE SPECIFIC PRODUCT WHICH CAUSED THE INJURY DID NOT PREVENT DEFENDANT-MANUFACTURER FROM PRESENTING A DEFENSE; THE COMPLAINT SHOULD NOT HAVE BEEN DISMISSED ON SPOLIATION GROUNDS (FIRST DEPT).
PLAINTIFF FELL FROM A SCAFFOLD WITHOUT GUARDRAILS; DEFENDANTS’ EVIDENCE THAT GUARDRAILS WERE AVAILABLE WAS NOT STRONG ENOUGH TO RAISE A QUESTION OF FACT (FIRST DEPT).
HOUSING AUTHORITY VIOLATED ITS OWN RULES AND EFFECTIVELY PREVENTED PETITIONER FROM MEETING THE PREREQUISITES FOR A HEARING ON HER REMAINING FAMILY MEMBER GRIEVANCE.
Termination of Teacher’s Probationary Employment and Teaching Licenses Was “Abitrary and Capricious” Because the Ruling Was Based In Part Upon an Issue, Absenteeism, of Which the Teacher Had Not Been Given Notice
THE INDICTMENT CHARGED DEFENDANT WITH ASSAULT SECOND AND ATTEMPTED ASSAULT SECOND BUT DID NOT ALLEGE THE USE OF A DEADLY WEAPON OR A DANGEROUS INSTRUMENT; THE PEOPLE’S THEORY AT TRIAL WAS DEFENDANT USED A PVC PIPE AS A DEADLY WEAPON OR A DANGEROUS INSTRUMENT; BUT, TO CORRECT THE FLAWED INDICTMENT, THE JUDGE, A DAY BEFORE THE END OF THE TRIAL, AMENDED THE INDICTMENT TO CHARGE ASSAULT THIRD AND ATTEMPTED ASSUALT THIRD; THE AMENDMENT PREJUDICED THE DEFENDANT (FIRST DEPT).
TRANSIT AUTHORITY’S MOTION FOR SUMMARY JUDGMENT IN THIS BUS-PASSENGER INJURY CASE SHOULD HAVE BEEN GRANTED; THE BUS DRIVER REACTED APPROPRIATELY TO A CAR SUDDENLY PULLING OUT IN FRONT OF THE BUS TO MAKE A U-TURN (FIRST 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

PETITIONERS. RELATIVES OF PERSONS IN THE NYS DNA DATABASE, HAD STANDING TO CHALLENGE... ACTION AGAINST AMAZON ALLEGING RETALIATION AGAINST WORKERS WHO PROTESTED COVID-RELATED...