Res Judicata and Law of the Case

Shahid v Legal Aid Socy., 173 AD3d 1099 [2d Dept. 2019]

“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 [2009]). “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” (Pereira v St. Joseph’s Cemetery, 78 AD3d 1141, 1142 [2010]). Here, contrary to the defendant’s contention that this action is barred by the doctrine of res judicata, the August 2015 complaint was not dismissed on the merits (see Hock v Cohen, 125 AD3d 722, 723 [2015]; Pereira v St. Joseph’s Cemetery, 78 AD3d at 1142).

Abdelfattah v Najar, 73 AD3d 657 [2d Dept. 2019]

The Supreme Court should not have granted the motion of the defendants Adnan Najar, Mohammed Najar, and 887 Fulton Realty, LLC (hereinafter collectively the defendants), pursuant to CPLR 3211 (a) to dismiss the complaint insofar as asserted against them on the ground that the action is barred by the doctrine of res judicata. The plaintiff had commenced a prior action against, among others, the defendants, and the complaint in that action was dismissed insofar as asserted against them upon the plaintiff’s failure to appear in opposition to their motion to dismiss. An order entered upon a party’s default in appearing to oppose a motion to dismiss is not a determination on the merits (see Aguilar v Jacoby, 34 AD3d 706 [2006]). Where a dismissal does not involve a determination on the merits, the doctrine of res judicata does not apply (see Cortazar v Tomasino, 150 AD3d 668, 670 [2017]; Pereira v St. Joseph’s Cemetery, 78 AD3d 1141 [2010]). Accordingly, the doctrine of res judicata does not apply to bar the instant action (see Franchise Acquisitions Group Corp. v Jefferson Val. Mall Ltd. Partnership, 73 AD3d 1123 [2010]).

Wells Fargo Bank, N.A. v Enbar, 173 AD3d 938 [2d Dept. 2019]

“A stipulation of discontinuance with prejudice without reservation of right or limitation of the claims disposed of is entitled to preclusive effect under the doctrine of res judicata” (Liberty Assoc. v Etkin, 69 AD3d 681, 682-683 [2010]; see Mooney v Manhattan Occupational, Physical & Speech Therapies, PLLC, 166 AD3d 957, 959 [2018]; Trapani v Squitieri, 107 AD3d 696, 696-697 [2013]; Matter of Chiantella v Vishnick, 84 AD3d 797, 798 [2011]).

Fidler v Gordon-Herricks Corp., 173 AD3d 840 [2d Dept. 2019]

“Pursuant to the doctrine of [the] law of the case, judicial determinations made during the course of . . . litigation before final judgment is entered may have preclusive effect provided that the parties had a full and fair opportunity to litigate the initial determination” (Sterngass v Town Bd. of Town of Clarkstown, 43 AD3d 1037, 1037 [2007]; accord Ruffino v Green, 72 AD3d 785, 786 [2010]). However, “[t]he doctrine . . . applies only to legal determinations that were necessarily resolved on the merits in [a] prior decision, and to the same questions presented in the same case” (Mosby v Parilla, 140 AD3d 1129, 1130-1131 [2016] [internal quotation marks omitted]; see Ramanathan v Aharon, 109 AD3d 529, 530 [2013]; Erickson v Cross Ready Mix, Inc., 98 AD3d 717, 717 [2012]).

Here, the doctrine of the law of the case is inapplicable, because the order entered July 14, 2016, reflects that summary judgment was awarded in favor of the moving defendants upon grounds that were specific to those defendants.

Landis v 383 Realty Corp., 173 AD3d 636 [2d Dept. 2019]

This action was commenced in Supreme Court and transferred to Surrogate’s Court upon the death of defendant Bunita L. Weiner. Before the transfer, plaintiff had moved for summary judgment, and Supreme Court (Barry Ostrager, J.) had denied the motion in an order entered July 31, 2017. That ruling, which plaintiff did not appeal, remained law of the case and could not be contravened by a court of coordinate jurisdiction (Grossman v Meller, 213 AD2d 221, 224 [1st Dept 1995]). Thus, the Surrogate correctly denied the instant motion for summary judgment on the ground that, as she said, “the substance of [plaintiff’s] motion was already squarely decided against him” by Supreme Court.

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