10 Opposition To Motion
10 Opposition To Motion
10 Opposition To Motion
25308/2019E
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 07/31/2019
Defendants.
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I, MICHAEL A. HUERTA, an attorney duly licensed to practice law in the State of New
1. I am plaintiffs’ counsel in the instant action and am fully familiar with the
3. That the defendants erroneously claim that plaintiffs have a pending action under
Bronx Supreme Court, Index No. 300601/2017. That matter is Watson v City of New York and it
4. That the previous action in this matter is Bronx Supreme Court, Index No.
0302215/2014 and was dismissed pursuant to 22 NYCRR 202.27 on December 10, 2018 for
5. That such dismissal was not on the merits of the action. “A dismissal pursuant to
22 NYCRR 202.27(b), based upon failure to attend a scheduled conference, is not “on the
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NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 07/31/2019
6. The First Department has held that where a dismissal is not on the merits, the
order or judgment should indicate that the dismissal is “without prejudice.” (emphasis supplied).
(Brooks v Harold Haidt, 59 AD3d 233 [1st Dept 2009]; Kalisch v Maple Trade Fin. Corp., 35
AD3d 291 [1st Dept 2006]). In Kalisch, the plaintiff failed to appear at a scheduled conference,
and Supreme Court issued an order dismissing the complaint “with prejudice” (emphasis
supplied). Since the dismissal was not on the merits, the order was modified on appeal, to state
other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over
the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final
judgment upon the merits, the plaintiff, or, if the plaintiff dies, and the cause of action
survives, his or her executor or administrator, may commence a new action upon the same
transaction or occurrence or series of transactions or occurrences within six months after the
termination provided that the new action would have been timely commenced at the time of
commencement of the prior action and that service upon defendant is effected within such
six-month period.
8. That the instant action was commenced on May 6, 2019, and served on May 6,
9. That this action was filed and served within the six month period allowed by
CPLR 205(a).
10. This case represents an instance in which a plaintiff can avoid making [a motion]
to vacate a default under section 202.27. * * * A prior order that does not indicate an intention to
dismiss the action on the merits is not a basis for the application of the doctrine of res judicata
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(see Miller Mfg. Co. v Zeiler, 45 NY2d 956 [1978]; Wilson v New York City
AFFIRMED:
HAE . HUERTA
HUERTA PLLC
212-729-4385
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