Hillman v. Khedaroo
Opinion
Hillman v Khedaroo
2026 NY Slip Op 04932
August 12, 2026
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This decision is uncorrected and subject to revision before publication in the Official Reports.
Sherwin A. Hillman, et al., appellants,
v
Arjune W. Khedaroo, et al., respondents, et al., defendant.
Supreme Court of the State of New York, Appellate Division, Second Judicial Department
Decided on August 12, 2026
2025-00763, (Index No. 520009/23)
Angela G. Iannacci, J.P.
Valerie Brathwaite Nelson
Paul Wooten
Janice A. Taylor, JJ.
Bogoraz Law Group (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac, Lori E. Parkman, and Jillian Rosen], of counsel), for appellants.
Law Office of Bilello, Zapantis, Garner and Puglisi, Westbury, NY (Franshone Winn of counsel), for respondent Asher Benedikt.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Kings County (Richard Velasquez, J.), dated November 20, 2024. The order, insofar as appealed from, granted the separate motions of the defendant Asher Benedikt and the defendants Arjune W. Khedaroo and Wheels LT pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against each of them and, in effect, denied, as academic, that branch of the plaintiffs' motion which was for leave to enter a default judgment against the defendant Asher Benedikt.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the separate motions of the defendant Asher Benedikt and the defendants Arjune W. Khedaroo and Wheels LT pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against each of them are denied, and that branch of the plaintiffs' motion which was for leave to enter a default judgment against the defendant Asher Benedikt is granted.
On August 16, 2020, a vehicle operated by the defendant Charles L. Clarke and owned by the defendant Asher Benedikt, in which the plaintiffs were passengers, collided with a vehicle operated by the defendant Arjune W. Khedaroo and owned by the defendant Wheels LT (hereinafter together with Khedaroo, the Wheels LT defendants).
In or about February 2021, the plaintiffs commenced an action against the defendants to recover damages for personal injuries allegedly suffered in the accident (hereinafter the first action). No affidavits of service were filed in connection with the first action. In August 2021, the plaintiffs commenced another action against the defendants to recover damages for personal injuries allegedly suffered in the accident (hereinafter the second action). By order dated May 8, 2023 (hereinafter the May 2023 order), the Supreme Court, upon the plaintiffs' default, granted a motion by Benedikt pursuant to CPLR 3211(a)(4) to dismiss the second action on the ground that the first action was pending between the same parties and sought the same relief. Thereafter, the first action was voluntarily discontinued without prejudice.
In July 2023, the plaintiffs commenced this action against the defendants to recover damages for personal injuries allegedly suffered in the accident. Benedikt failed to timely answer the complaint, and the plaintiffs moved, inter alia, for leave to enter a default judgment against him. Benedikt opposed the motion and moved pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against him as barred by the doctrine of res judicata. The Wheels LT defendants separately moved pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against them on the same ground. In an order dated November 20, 2024, the Supreme Court, among other things, granted the separate motions of Benedikt and the Wheels LT defendants and, in effect, denied, as academic, that branch of the plaintiffs' motion which was for leave to enter a default judgment against Benedikt. The plaintiffs appeal.
Pursuant to CPLR 3211(a)(5), a party may seek dismissal of a cause of action based upon the doctrine of res judicata (see Sunny v Hossain, 236 AD3d 699, 699-700; Ciafone v City of New York, 227 AD3d 946, 946). "Under the doctrine of res judicata, a disposition on the merits bars litigation between the same parties or those in privity with them of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior proceeding" (Goldstein v Massachusetts Mut. Life Ins. Co., 32 AD3d 821, 821; see Paramount Pictures Corp. v Allianz Risk Transfer AG, 31 NY3d 64, 72-73). Where a dismissal of a prior action does not involve a determination on the merits, the doctrine of res judicata does not apply (see 1155 Nobo Assoc., LLC v New York Hosp. Med. Ctr. of Queens, 181 AD3d 937, 938; Shahid v Legal Aid Socy., 173 AD3d 1099, 1101).
Here, contrary to Benedikt's contention, the May 2023 order granting his motion pursuant to CPLR 3211(a)(4) to dismiss the second action because the first action was still pending did not constitute a default judgment entered against the plaintiff and was not otherwise a determination on the merits as would bar this action under the doctrine of res judicata (see Sumar v Fox, 90 AD3d 577; see also Counsel Abstract, Inc. Defined Ben. Pension Plan v Jerome Auto Ctr., Inc., 23 AD3d 274, 276; cf. Oteri v Oteri-Harkins, 205 AD3d 814, 815). Accordingly, the Supreme Court should have denied the separate motions of Benedikt and the Wheels LT defendants pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against each of them (see Mobile Air Transp., Inc. v Summit Handling Sys., Inc., 133 AD3d 576; Hock v Cohen, 125 AD3d 722, 723).
Although the Supreme Court, in effect, denied that branch of the plaintiffs' motion which was for leave to enter a default judgment against Benedikt as academic, since the merits of that branch of the motion were litigated by the parties in the Supreme Court and briefed by the parties in this Court, we address that branch of the motion in the interest of judicial economy (see Wells Fargo Bank, N.A. v Rindenow, 186 AD3d 782, 783; Xin Fang Xia v Saft, 177 AD3d 823, 825).
"On a motion for leave to enter a default judgment under CPLR 3215, a plaintiff must submit proof of service of the summons and the complaint, the facts constituting the causes of action, and the defendant's default" (Rattner v Fessler, 202 AD3d 1011, 1014; see CPLR 3215[f]). "To defeat a facially sufficient CPLR 3215 motion, a defendant must show either that there was no default, or that it had a reasonable excuse for its delay and a potentially meritorious defense" (National Loan Invs., L.P. v Bruno, 191 AD3d 999, 1001; see U.S. Bank N.A. v Crockett, 201 AD3d 767, 768).
Here, the plaintiffs established their entitlement to a default judgment against Benedikt by submitting proof of service of the summons and the complaint, proof of the facts constituting the claim, and proof of Benedikt's default (see Jing Shan Chen v R & K 51 Realty, Inc., 148 AD3d 689, 690; Wassertheil v Elburg, LLC, 94 AD3d 753, 753). In opposition, Benedikt failed to make the requisite showing either that there was no default or that he had a reasonable excuse for his delay in answering the complaint and a potentially meritorious defense to the action (see Austin 26 Dental Group, PLLC v Sino Northeast Metals (U.S.A.), Inc., 230 AD3d 545, 548; National Loan Invs., L.P. v
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