Pereira v St. Joseph's Cemetery, 2010 NY Slip Op 08917 (App. Div., 2nd 2010)
"Where a dismissal does not involve a determination on the merits, the doctrine of res judicata does not apply" (Djoganopoulos v Polkes, 67 AD3d 726, 727; see Asgahar v Tringali Realty, Inc., 18 AD3d 408; Sclafani v Story Book Homes, 294 AD2d 559, 559-560). As a general rule, a [*2]dismissal for failure to state a cause of action is not on the merits and, thus, will not be given res judicata effect (see Maitland v Trojan Elec. & Mach. Co., 65 NY2d 614, 615; Asgahar v Tringali Realty, Inc., 18 AD3d at 408; see also Sullivan v Nimmagadda, 63 AD3d 908, 909). Here, our prior dismissal was not on the merits and, consequently, the doctrine of res judicata was not a bar to the plaintiff's second action.