CPLR 3217 Voluntary discontinuance
(c) Effect of discontinuance
Maurischat v County of Nassau, 2011 NY Slip Op 01249 (App. Div., 2nd 2011)
After locating the settlement documents, the defendant moved, inter alia, for summary judgment on res judicata grounds. The Supreme Court denied that branch of the defendant's motion on the ground that since the settlement documents did not state that the prior action was settled "with prejudice," res judicata was inapplicable to bar the second action. " Under res judicata, or claim preclusion, a valid final judgment bars future actions between the same parties on the same cause of action'" (Landau, P.C. v LaRossa, Mitchell & Ross, 11 NY3d 8, 12, quoting Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 347; see Wisell v Indo-Med Commodities, Inc., 74 AD3d 1059, Matter of AutoOne Ins. Co. v Valentine, 72 AD3d 953, 955; Pawling Lake Prop. Owners Assn., Inc. v Greiner, 72 AD3d 665, 667; 99 Cents Concepts, Inc. v Queens Broadway, LLC, 70 AD3d 656, 658). "A voluntary discontinuance ordinarily is not a decision on the merits, and res judicata does not bar a [plaintiff] from maintaining another proceeding for the same claim unless the order of discontinuance recites that the claim was discontinued or settled on the merits" (Matter of AutoOne Ins. Co. v Valentine, 72 AD3d at 955). Thus, a stipulation to discontinue an action without prejudice is not subject to the doctrine of res judicata (see Landau, P.C. v LaRossa, Mitchell & Ross, 11 NY3d at 12; Matter of AutoOne Ins. Co. v Valentine, 72 AD3d 953; see also 99 Cents Concepts, Inc. v Queens Broadway, LLC, 70 AD3d at 658; cf. Greenstone/Fontana Corp. v Feldstein, 72 AD3d 890, 893; Pawling Lake Prop. Owners Assn., Inc. v Greiner, 72 AD3d at 667; Liberty Assoc. v Etkin, 69 AD3d 681, 682-683).
Here, the Supreme Court properly found that the doctrine of res judicata did not bar this action since the stipulation discontinuing the plaintiffs' prior action against the defendant, commenced in 1993, was not with prejudice (see Matter of AutoOne Ins. Co. v Valentine, 72 AD3d at 955; North Shore-Long Island Jewish Health Sys., Inc. v Aetna US Healthcare, Inc., 27 AD3d 439, 440; Southampton Acres Homeowners Assn. v Riddle, 299 AD2d 334, 335; Van Hof v Town of Warwick, 249 AD2d 382, 382; Forte v Kaneka Am. Corp., 110 AD2d 81, 85; see generally CPLR 3217[c]).
The defendant's contention that the general release was intended to prevent the litigation of any claim that might have arisen out of the construction of its culvert is improperly raised for the first time before this Court (see Matter of Castillo v Town of Oyster Bay, 70 AD3d 939; Matter of Panetta v Carroll, 62 AD3d 1010).