Wiki Chen v. Sunshine World Travel

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 24, 2019
• Docket: 2019 NYSlipOp 51031(U)
• Status: Published

Opinion

Wiki Chen, 570171/19

against

Sunshine World Travel and Ru Fei Zhao, Defendants-Respondents.

Plaintiff appeals from an order of the Small Claims Part of the Civil Court of the City of New York, New York County (Joan M. Kenney, J.), dated August 15, 2018, which granted defendants' motion to dismiss two small claims actions pursuant to CPLR 3211(a)(3) and (5).

Per Curiam.

Order (Joan M. Kenney, J.), dated August 15, 2018, modified by providing that the dismissal of the claims is without prejudice; as modified, order affirmed, without costs.

We sustain the grant of defendants' motion to dismiss these consolidated small claims actions, albeit for reasons slightly different than those stated by Civil Court. The underlying small claims actions, seeking damages arising from the purchase of an airline ticket, were properly dismissed on the ground that plaintiff lacks standing to sue, since he was not the purchaser of any airline ticket from defendants (see Dimich v Med-Pro, Inc., 34 AD3d 329, 330 [2006], lv dismissed and denied 8 NY3d 904 [2007]). We agree with plaintiff, however, that his claims could not be dismissed on res judicata grounds, since the dismissal of the prior small claims action "without prejudice" was not a dismissal on the merits for res judicata purposes (see Landau, P.C. v La Rossa, Mitchell & Ross, 11 NY3d 8, 13-14 [2008]; Wells Fargo Bank, N.A. v Ndiaye, 146 AD3d 684 [2017]).

Since a dismissal premised on lack of standing is not a dismissal on the merits for res judicata purposes, plaintiff is not precluded from reasserting the same claims based on newly conferred rights which cure the prior lack of capacity (see Pullman Group v Prudential Ins. Co. of Am., 297 AD2d 578 [2002]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur

Decision Date: June 24, 2019