Appeal by plaintiff from an order of the Civil Court, Kings County (P. Sweeney, J.), entered January 7, 2004, granting defendant's motion to dismiss the complaint.

Order unanimously affirmed without costs.

Defendant moved, inter alia, to dismiss the complaint for failing to state a cause of action and as barred by the doctrines of collateral estoppel and res judicata. By
order entered January 7, 2004, the court below granted defendant's motion upon the
ground that the action was barred by the doctrine of res judicata.

Contrary to the determination of the court below, since the prior Supreme Court order did not indicate an intention to dismiss on the merits, said order cannot be a basis for the application of the doctrines of collateral estoppel or res judicata (see Mudry v Giannattasio, 8 AD3d 455 [2004]; see also Kaufman v Eli Lily & Co., 65 NY2d 449, 455 [1985]). Nevertheless, we find that the complaint herein does not contain a statement of the nature and substance of the cause of action (see CCA 902 [a] [1]) and, therefore, was properly dismissed by the court below.

Decision Date: December 01, 2004