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    10 Opposition To Motion

    Uploaded by

    Michael A. Huerta
    This document is an affirmation in opposition to a motion to dismiss. It argues that the previous lawsuit on this matter was dismissed without prejudice for failure to appear, not on the merits, so this current lawsuit filed within 6 months is allowed under CPLR 205(a). It provides exhibits showing the previous dismissal and filing of the current case within the 6 month period. The affirmation asserts the defendants' claim of a pending related case is incorrect and that res judicata does not apply to a non-merits dismissal.

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    10 Opposition To Motion

    Uploaded by

    Michael A. Huerta
    65 views3 pages
    This document is an affirmation in opposition to a motion to dismiss. It argues that the previous lawsuit on this matter was dismissed without prejudice for failure to appear, not on the merits, so this current lawsuit filed within 6 months is allowed under CPLR 205(a). It provides exhibits showing the previous dismissal and filing of the current case within the 6 month period. The affirmation asserts the defendants' claim of a pending related case is incorrect and that res judicata does not apply to a non-merits dismissal.

    Original Description:

    Opposition to Motion to Dismiss (22 NYCRR 202.27)

    Original Title

    10 Opposition to Motion

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    This document is an affirmation in opposition to a motion to dismiss. It argues that the previous lawsuit on this matter was dismissed without prejudice for failure to appear, not on the merits, so this current lawsuit filed within 6 months is allowed under CPLR 205(a). It provides exhibits showing the previous dismissal and filing of the current case within the 6 month period. The affirmation asserts the defendants' claim of a pending related case is incorrect and that res judicata does not apply to a non-merits dismissal.

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    65 views3 pages

    10 Opposition To Motion

    Uploaded by

    Michael A. Huerta
    This document is an affirmation in opposition to a motion to dismiss. It argues that the previous lawsuit on this matter was dismissed without prejudice for failure to appear, not on the merits, so this current lawsuit filed within 6 months is allowed under CPLR 205(a). It provides exhibits showing the previous dismissal and filing of the current case within the 6 month period. The affirmation asserts the defendants' claim of a pending related case is incorrect and that res judicata does not apply to a non-merits dismissal.

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    © All Rights Reserved
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    The affirmation opposes a motion to dismiss by arguing that the previous case was dismissed without prejudice and this case was filed within the six month period allowed by CPLR 205(a).

    The affirmation is opposing a motion to dismiss by arguing that the previous case, Bronx Supreme Court Index No. 0302215/2014, was dismissed without prejudice for failure to appear and not on the merits.

    The previous case being referenced is Bronx Supreme Court Index No. 0302215/2014 which was dismissed on December 10, 2018 for the plaintiff's failure to appear at a conference.

    FILED: BRONX COUNTY CLERK 07/31/2019 11:32 PM INDEX NO.

    25308/2019E
    NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 07/31/2019

    NEW YORK STATE SUPREME COURT


    COUNTY OF BRONX
    ------------------------------------------------------------------------X
    ALI KETTRLES, JOHN DOES 1-13

    Plaintiffs, Index No. 25308/2019


    -against-
    AFFIRMATION IN
    OPPOSITION
    THE CITY OF NEW YORK, CORRECTION OFFICERS
    JOHN DOES 14-26, JANE DOE

    Defendants.

    ----------------------------------------------------------------------X

    I, MICHAEL A. HUERTA, an attorney duly licensed to practice law in the State of New

    York, affirm the following under penalty of perjury:

    1. I am plaintiffs’ counsel in the instant action and am fully familiar with the

    proceedings had herein.

    2. That this affirmation is made in opposition to the instant motion to dismiss.

    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

    is marked disposed on NYS E-Courts website.

    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

    plaintiff’s failure to appear at a conference. (Exhibit A).

    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

    merits.” (Espinoza v Concordia Internal., 32 AD3d 326 [1st Dept 2006]).

    1 of 3
    FILED: BRONX COUNTY CLERK 07/31/2019 11:32 PM INDEX NO. 25308/2019E
    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

    that the dismissal was “without prejudice.”

    7. CPLR 205(a) provides: If an action is timely commenced and is terminated in any

    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,

    2019. (Exhibit B).

    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

    2 of 3
    FILED: BRONX COUNTY CLERK 07/31/2019 11:32 PM INDEX NO. 25308/2019E
    NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 07/31/2019

    (see Miller Mfg. Co. v Zeiler, 45 NY2d 956 [1978]; Wilson v New York City

    AD3d 572 [2005]; Mudry v C es"ssic, 8 AD3d 455 [2004]).

    Dated: New York, New York

    July 31, 2019

    AFFIRMED:

    HAE . HUERTA

    Attorney for the Plaintiffs

    HUERTA PLLC

    447 Broadway, #245

    New York, New York 10013

    212-729-4385

    3 of 3

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