Ema Acupuncture, P.C. v Lumbermens Mut. Cas. Co. (2010 NY Slip Op 50995(U))

Ema Acupuncture, P.C. v Lumbermens Mut. Cas. Co.

2010 NY Slip Op 50995(U) [27 Misc 3d 141(A)]

Decided on June 4, 2010

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected in part through November 4, 2011; it will not be published in the printed Official Reports.

Ema Acupuncture, P.C. a/a/o VITO SUSCA, Appellant,

against

Lumbermens Mutual Casualty Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered December 18, 2009. The order granted defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed without costs and defendant's motion for summary judgment is denied.

Plaintiff commenced an action in Civil Court, Queens County, to recover assigned first-party no-fault benefits for services provided to its assignor between February 5, 2002 and April 12, 2002. Issue was joined in July 2003. In August 2007, defendant served plaintiff with a 90-day demand pursuant to CPLR 3216 (b) (3). On papers dated January 9, 2008 and returnable February 4, 2008, defendant moved to dismiss the Queens County action for want of prosecution (CPLR 3216 [a]). On January 23, 2008, plaintiff, without responding to the motion to dismiss, commenced the instant action by filing a summons and complaint (see CCA 400), subsequently amended, in Civil Court, Kings County, based on the same cause of action. On February 4, 2008, the court (Diane A. Lebedeff, J.) granted the motion to dismiss the Queens County action, on default, but without any indication that the dismissal was on the merits (see CPLR 3216 [a]). Defendant subsequently moved for summary judgment dismissing the complaint in the instant action on the ground of res judicata, citing the Queens County dismissal order. The Civil Court granted the motion, and plaintiff appeals.

Since the dismissal order did not "specif[y] otherwise" (CPLR 3216 [a]), the dismissal was not "on the merits" or "with prejudice" (Yonkers Contr. Co. v Port Auth. Trans-Hudson Corp., 93 NY2d 375, 380 [1999]; e.g. Gallo v Teplitz Tri-State Recycling, 254 AD2d 253, 254 [1998]) and does not preclude, on res judicata grounds, a new action between the same parties for the same cause of action (e.g. Greenberg v De Hart, 4 NY2d 511, 516-517 [1958]; San Filippo v Adler, 278 AD2d 402 [2000]; see also Mudry v Giannattasio, 8 AD3d 455, 456 [2004]; Morales v New York City Hous. Auth., 302 AD2d 571 [2003]; Mays v Whitfield, 282 AD2d 721 [2001]). Accordingly, the order granting defendant's motion for summary judgment dismissing the complaint is reversed and the motion denied.