Opinion
2011-12-27
Naghib SUMAR, Plaintiff–Respondent, v. Barry FOX, et al., Defendants–Appellants.
Steven L. Kessler, New York, for appellants. Samuel & Stein, New York (Michael S. Samuel of counsel), for respondent.
Steven L. Kessler, New York, for appellants. Samuel & Stein, New York (Michael S. Samuel of counsel), for respondent.
Order, Supreme Court, New York County (Joan A. Madden, J.), entered May 21, 2010, which, to the extent appealed from as limited by the briefs, denied defendants' motion to dismiss the complaint on the basis of res judicata, unanimously affirmed, with costs.
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 A.D.3d 1100, 1100, 784 N.Y.S.2d 467 [2004]; Espinoza v. Concordia Intl. Forwarding Corp., 32 A.D.3d 326, 328, 820 N.Y.S.2d 259 [2006] ; Boorman v. Deutsch, 152 A.D.2d 48, 52, 547 N.Y.S.2d 18 [1989], lv. dismissed 76 N.Y.2d 889, 561 N.Y.S.2d 550, 562 N.E.2d 875 [1990] ), and plaintiff was free to commence this action without having to contest the dismissal of the prior action ( see Espinoza, 32 A.D.3d at 327, 820 N.Y.S.2d 259).
We have considered defendants' remaining contentions, and find them unavailing.