Sumar v. Fox

Appellate Division of the Supreme Court of New York

Sumar v. Fox

90 A.D.3d 577, 934 N.Y.2d 805

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 27, 2011

StatusPublished

This text of 90 A.D.3d 577 (Sumar v. Fox) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Sumar v. Fox, 90 A.D.3d 577, 934 N.Y.2d 805 (N.Y. Ct. App. 2011).

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Opinion

Plaintiff commenced a prior action involving identical parties and causes of action. Defendants moved to dismiss the prior action for lack of personal jurisdiction. Plaintiff did not oppose the motion, which was granted “on default,” with no indication that dismissal was on the merits or with prejudice. Under the circumstances, the doctrine of res judicata does not apply (see Wynn v Security Mut. Ins. Co., 12 AD3d 1100, 1100 [2004]; Espinoza v Concordia Intl. Forwarding Corp., 32 AD3d 326, 328 [2006]; Boorman v Deutsch, 152 AD2d 48, 52 [1989], lv dismissed 76 NY2d 889 [1990]), and plaintiff was free to commence this action without having to contest the dismissal of the prior action (see Espinoza, 32 AD3d at 327).

We have considered defendants’ remaining contentions, and find them unavailing. Concur — Mazzarelli, J.P., Friedman, Catterson, Renwick and Freedman, JJ. [Prior Case History: 2010 NY Slip Op 3124KU).]

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Plaintiff commenced a prior action involving identical parties and causes of action. Defendants moved to dismiss the prior action for lack of personal jurisdiction. Plaintiff did not oppose the motion, which was granted “on default,” with no indication that dismissal was on the merits or with prejudice. Under the circumstances, the doctrine of res judicata does not apply (see Wynn v Security Mut. Ins. Co., 12 AD3d 1100, 1100 [2004]; Espinoza v Concordia Intl. Forwarding Corp., 32 AD3d 326, 328 [2006]; Boorman v Deutsch, 152 AD2d 48, 52 [1989], lv dismissed 76 NY2d 889 [1990]), and plaintiff was free to commence this action without having to contest the dismissal of the prior action (see Espinoza, 32 AD3d at 327).

We have considered defendants’ remaining contentions, and find them unavailing. Concur — Mazzarelli, J.P., Friedman, Catterson, Renwick and Freedman, JJ. [Prior Case History: 2010 NY Slip Op 3124KU).]

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Bluebook (online)

90 A.D.3d 577, 934 N.Y.2d 805, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sumar-v-fox-nyappdiv-2011.

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