Whitfield v. JWP/Forest Electric Corp.

223 A.D.2d 423, 637 N.Y.S.2d 4, 1996 N.Y. App. Div. LEXIS 319

Opinion

Order, Supreme Court, New York County (Myriam Altman, J.), entered July 14, 1993, which, inter alia, denied defendant’s motion to dismiss the second, third and fourth causes of action of the complaint on the ground of res judicata, unanimously affirmed, with costs.

The second, third and fourth causes of action in this action were previously asserted as pendent State claims in a Federal action. Such claims were dismissed in the Federal action as a result of lack of Federal court jurisdiction. Since the dismissal in Federal court was not on the merits and since these causes of action are not equivalent to the causes of action which were dismissed on the merits in the Federal action (see, Capital Tel. Co. v New York Tel. Co., 146 AD2d 312), the doctrine of res judicata is inapplicable (Lamontagne v Board of Trustees, 183 AD2d 424, 425-426, lv denied 80 NY2d 759).

While plaintiff seeks to challenge the IAS Court’s ruling with respect to the first cause of action, plaintiff has never filed a notice of cross appeal from the court’s order and thus has not properly presented the issue for our review (see, People v Consolidated Edison Co., 34 NY2d 646, 648). Concur—Ellerin, J. P., Rubin, Nardelli, Tom and Mazzarelli, JJ.