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PLAINTIFF IS THE SUCCESSOR IN INTEREST TO THE PLAINTIFF IN A PRIOR IDENTICAL ACTION WHICH WAS DISMISSED FOR FAILURE TO COMPLY WITH DISCOVERY DEMANDS AND ORDERS; THE INSTANT ACTION IS PRECLUDED BY THE DOCTRINE OF RES JUDICATA (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff 120 Lexington Ave Corp, as the successor in interest to 122-24 Lexington Ave Corp, was precluded from bringing the action by the doctrine of res judicata. A nearly identical action by 122-24 Lexington Ave Corp had been dismissed based upon plaintiff’s failure to comply with discovery demands and orders, which is deemed a dismissal on the merits:

Plaintiff concedes that it is the successor in interest to 122-24 Lexington Avenue Corp., an entity whose nearly identical case against Wesco was dismissed in May 2021 for failure to comply with discovery demands and court orders after the court had issued a conditional preclusion order. Because plaintiff is the successor to 122-24 Lexington, it is in privity with that entity and is bound by prior adjudications against it … . Furthermore, a dismissal based on a failure to provide discovery in the face of a preclusion order is considered an award on the merits, and thus is given res judicata effect … . 120 Lexington Ave. Corp. v Wesco Ins. Co., 2024 NY Slip Op 02004, First Dept 4-16-24

Practice Point: An action which was dismissed because plaintiff failed to comply with discovery demands and orders bars a subsequent action pursuant to the doctrine of res judicata.

 

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