You are here: / / Dismissal for Failure to State a Cause of Action Is Not Given Res Judicata...

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

 

You might also like
THE PROCESS SERVER DID NOT EXERCISE DUE DILIGENCE IN LOCATING THE DEFENDANT BEFORE RESORTING TO “NAIL AND MAIL” SERVICE OF PROCESS; COMPLAINT DISMISSED (SECOND DEPT).
COVENANT PROHIBITING CONSTRUCTION OF A COMMERCIAL GARAGE DID NOT RUN WITH THE LAND, PLAINTIFF THEREFORE DID NOT HAVE STANDING TO ENFORCE IT (SECOND DEPT).
DEFENDANT DID NOT PROVE IT HAD A PRESCRIPTIVE EASEMENT ALLOWING EFFLUENT AND STORM WATER TO BE DISCHARGED ONTO PLAINTIFFS’ PROPERTY, ON APPEAL PLAINTIFFS AWARDED JUDGMENT ON THEIR TRESPASS ACTION (SECOND DEPT).
Complaint Did Not State a Cause of Action Against City for Negligent Failure to Provide Emergency Medical Services—No “Special Relationship” Alleged
PLAINTIFFS FOUND OUT WELL INTO THE CONTRACT FOR GAS-MAIN WORK THAT THE REQUESTED INSURANCE COVERAGE HAD NOT BEEN PROVIDED; THE DECLARATORY JUDGMENT CAUSE OF ACTION WAS PROPERLY DISMISSED BECAUSE IT DEPENDED ON A CIRCUMSTANCE THAT MAY NOT OCCUR; THE NEGLIGENT PROCUREMENT CAUSE OF ACTION WAS PROPERLY DISMISSED FOR LACK OF DAMAGES; THE BREACH OF CONTRACT CAUSE OF ACTION WAS SUPPORTED BY NOMINAL DAMAGES; THE FRAUD AND NEGLIGENT MISREPRESENTATION CAUSES OF ACTION WERE SUPPORTED BY A SPECIAL RELATIONSHIP WITH THE INSURANCE BROKER AND DETRIMENTAL RELIANCE (SECOND DEPT).
THE BANK DID NOT COMPLY WITH THE “SEPARATE ENVELOPE” RULE OF RPAPL 1304 WHICH REQUIRES THAT NOTHING ELSE BE INCLUDED IN THE ENVELOPE WITH THE NOTICE OF FORECLOSURE; THE BANK SHOULD NOT HAVE BEEN AWARDED SUMMARY JUDGMENT (SECOND DEPT).
Rationale for Allowing a Late Motion for Summary Judgment When It Is Identical in Substance to a Timely Motion for Summary Judgment Made by Another Party Explained
DISCOVERY STATUTE MUST BE LIBERALLY CONSTRUED, PLAINTIFF ENTITLED TO CONTRACTS AND AGREEMENTS DEMONSTRATING THE RELATIONSHIP AMONG THE DEFENDANTS IN THIS MEDICAL MALPRACTICE ACTION (SECOND 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

Failure to Timely Respond to a Notice to Admit Not an Admission of the Matters... CPLR 5239 Is the Proper Vehicle for Vacation of an Execution—Here Defendant’s...