Hernandez v St. Barnabas Hosp.

Hernandez v St. Barnabas Hosp. 2011 NY Slip Op 07722 Decided on November 3, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 3, 2011
Mazzarelli, J.P., Saxe, Acosta, DeGrasse, Manzanet-Daniels, JJ.
5925 350378/09

[*1]Randy Hernandez, an Infant by his Mother and Natural Guardian, Yalitza Diaz, Plaintiff-Respondent,

v

St. Barnabas Hospital, Defendant-Appellant, Dr. Christopher Leong, M.D., et al., Defendants.




Garbarini & Scher, P.C., New York (William D. Buckley of
counsel), for appellant.
Thomas L. Bondy, P.C., New York (Thomas L. Bondy of
counsel), for respondent.

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered July 16, 2010, which, in this medical malpractice action, to the extent appealed from as limited by the briefs, denied defendant-appellant's motion to dismiss the complaint on the basis of res judicata, unanimously affirmed, without costs.

Supreme Court correctly determined that this action is not barred by the doctrine of res judicata. The prior action was dismissed as a result of plaintiff's counsel's failure to attend a calendar call (see 22 NYCRR 202.27[b]). Accordingly, the dismissal was not on the merits and thus does not have res judicata effect (Espinoza v Concordia Intl. Forwarding Corp., 32 AD3d 326, 328 [2006]; Kalisch v Maple Trade Fin. Corp., 35 AD3d 291 [2006]). We have considered defendant's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 3, 2011

CLERK