Sumar v. Fox

Plaintiff commenced a prior action involving identical parties and causes of action. Defendants moved to dismiss the prior action for lack of personal jurisdiction. Plaintiff did not oppose the motion, which was granted “on default,” with no indication that dismissal was on the merits or with prejudice. Under the circumstances, the doctrine of res judicata does not apply (see Wynn v Security Mut. Ins. Co., 12 AD3d 1100, 1100 [2004]; Espinoza v Concordia Intl. Forwarding Corp., 32 AD3d 326, 328 [2006]; Boorman v Deutsch, 152 AD2d 48, 52 [1989], lv dismissed 76 NY2d 889 [1990]), and plaintiff was free to commence this action without having to contest the dismissal of the prior action (see Espinoza, 32 AD3d at 327). We have considered defendants’ remaining contentions, and find them unavailing. Concur — Mazzarelli, J.P., Friedman, Catterson, Renwick and Freedman, JJ. [Prior Case History: 2010 NY Slip Op 3124KU).]