A Dismissal Pursuant to 22 NYCRR 202.27 For Failure to Attend a Compliance Conference Is Not a Dismissal on the Merits

“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]). After the dismissal of the first action in Espinoza, the plaintiff commenced a new action within the applicable statute of limitations, and it was not barred by the doctrine of res judicata:

“Plaintiff’s first action was dismissed under 22 NYCRR 202.27 (b), which permits the court to dismiss an action upon a plaintiff’s failure to appear at a scheduled conference (see Campos v New York City Health & Hosps. Corp., 307 AD2d 785 [2003]). As defendants correctly note, in order to vacate her default plaintiff would be required to demonstrate both a reasonable excuse for her failure to appear at the conference and a meritorious cause of action (see e.g. Kein v Zeno, 23 AD3d 351 [2005]). However, plaintiff did not seek to vacate her default in the prior action; rather she commenced a new action within the applicable statute of limitations (see Bank of N.Y. v LS Monticello JV, 209 AD2d 464 [1994]). This case represents an instance in which a plaintiff can avoid making the requisite dual showing 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 (see Miller Mfg. Co. v Zeiler, 45 NY2d 956 [1978]; Wilson v New York City Hous. Auth., 15 AD3d 572 [2005]; Mudry v Giannattasio, 8 AD3d 455 [2004]). Here, the first action was dismissed as a result of plaintiffs counsel’s failure to attend a compliance conference, not on the merits.”

(id., at 327-328).

The Espinoza court noted that the “dismissal of plaintiffs first action was not without any adverse consequences, as plaintiff was required to purchase a new index number to commence this action. Although this is a relatively insignificant consequence compared to the prospect of being out of court entirely, it is the only one the law presently permits.” (id., at 328).

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”:

“Order, Supreme Court, New York County (Jane S. Solomon, J.), entered February 15, 2006, which, to the extent appealed from, denied plaintiff’s motion to vacate her default and dismissed the complaint with prejudice, unanimously modified, on the law and the facts, to the extent of directing that the dismissal of the complaint be without prejudice, and otherwise affirmed, without costs.
*               *               *
In order to vacate her default, plaintiff would be required to demonstrate both a reasonable excuse for her failure to appear at the conference and a meritorious cause of action (Espinoza v Concordia Intl. Forwarding Corp., 32 AD3d 326 [2006]). Assuming, arguendo, that plaintiff demonstrated a reasonable excuse for her failure to appear at a scheduled conference, she wholly failed to establish a meritorious cause of action. No affidavit of merit was annexed to the motion papers. Nevertheless, the adjudication was not for neglect to prosecute and was not on the merits (Greenberg v De Hart, 4 NY2d 511, 516-517 [1958]). Therefore, the dismissal does not have res judicata effect (Espinoza, 32 AD3d at 328). (emphasis supplied).”

The Second Department reached the same result in Farrell Forwarding v Alison Transport, 118 AD2d 891 [2d Dept 2014]:

“After the plaintiff failed to appear at a court-ordered conference, the defendant moved for leave to enter a default judgment and to dismiss the complaint pursuant to 22 NYCRR 202.27(b). In opposition to the motion, the plaintiff failed to establish either a reasonable excuse for the default or a potentially meritorious cause of action. Accordingly, the motion for leave to enter a default judgment and to dismiss the complaint was properly granted (see Aydiner v Grosfillex, Inc., 111 AD3d 589). However, the judgment should have dismissed the complaint without prejudice, since dismissal of an action for a default pursuant to 22 NYCRR 202.27 does not constitute a determination on the merits (see Franchise Acquisitions Group Corp. v Jefferson Val. Mall Ltd. Partnership, 73 AD3d 1123; Kalisch v Maple Trade Fin. Corp., 35 AD3d 291).” (emphasis supplied)

Pursuant to CPLR 205[a], a party whose timely commenced action has been dismissed subsequent to the expiration of the applicable limitations period, may recommence the action, provided that the original dismissal was not predicated upon, inter alia, a voluntary discontinuance, neglect to prosecute or a final judgment on the merits. Campbell v. City of New York, 4 NY3d 200, 209-210 [2005]; Carrick v. Central General Hospital, 51 NY2d 242, 247 [1980]; George v. Mt. Sinai Hospital, 47 NY2d 170, 180-181 [1979]; Montgomery v. Minarcin, 245 AD2d 920, 921 [3d Dept 1997]; see also, Elite Associates, Inc. v. Board of Educ., Longwood Cent. School Dist., 284 AD2d 298, 299 [2d Dept 2001].

Where there is an appeal from the dismissal, the six months provided by CPLR 205(a) begins to run from the date of the affirmance. (Franch. Acquis. Group v Jefferson Val. Mall, 73 AD3d 1123 [2d Dept 2010]). In Franchise Acquisitions, the dismissal pursuant to 22 NYCRR 202.27 (b) was affirmed; and a new action was commenced approximately two months later, which was not barred by res judicata or by the statute of limitations:

“The prior action involving the same parties, which was commenced in the Supreme Court, Westchester County, on January 11, 2006, was dismissed pursuant to 22 NYCRR 202.27 (b) in an order dated October 31, 2007, based on the plaintiffs failure to appear at a scheduled pretrial conference. This Court affirmed the dismissal in a decision and order dated May 13, 2008, finding that the plaintiff failed to set forth a reasonable excuse for its failure to appear at the conference (see Franchise Acquisitions Group Corp. v Jefferson Val. Mall Ltd. Partnership, 51 AD3d 717 [2008]).

“Contrary to the defendant’s contention, the dismissal of the prior action was upon the plaintiff’s default, and thus did not constitute a determination on the merits (see Kaufman v Eli Lilly & Co., 65 NY2d 449, 456-457 [1985]; Merchants Ins. Group v Hudson Val. Fire Protection Co., Inc., 72 AD3d 762 [2010]; Persaud v Pharsi, 70 AD3d 660 [2010]).  * * * Accordingly, the doctrine of res judicata, which bars future actions if a valid final judgment on the merits was rendered in a prior action between the same parties and on the same cause of action (see Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 347-348 [1999]; O‘Brien v City of Syracuse, 54 NY2d 353, 357 [1981]; Matter of Segreto v Grannis, 70 AD3d 704 [2010]), does not apply to bar the instant action (see Djoganopoulos v Polkes, 67 AD3d 726 [2009]; Brooks v Haidt, 59 AD3d 233 [2009]). “

(id., at 1123-1124).

 

 
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