Hernandez v. St. Barnabas Hospital

89 A.D.3d 457, 931 N.Y.2d 875

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 3, 2011
• Status: Published

Opinion

Supreme Court correctly determined that this action is not barred by the doctrine of res judicata. The prior action was dismissed as a result of plaintiffs counsel’s failure to attend a calendar call (see 22 NYCRR 202.27 [b]). Accordingly, the dismissal was not on the merits and thus does not have res judicata effect (Espinoza v Concordia Intl. Forwarding Corp., 32 AD3d 326, 328 [2006]; Kalisch v Maple Trade Fin. Corp., 35 AD3d 291 [2006]). We have considered defendant’s remaining contentions and find them unavailing. Concur — Mazzarelli, J.R, Saxe, Acosta, DeGrasse and Manzanet-Daniels, JJ.