Daved Fire Sys. Inc. v New York City Health & Hosps. Corp.

Daved Fire Sys. Inc. v New York City Health & Hosps. Corp. 2007 NY Slip Op 09936 [46 AD3d 364] December 18, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 13, 2008

Daved Fire Systems Inc., Appellant,
v
New York City Health and Hospitals Corporation, Respondent.

—[*1] Cohen & Krassner, New York City (Mark Krassner of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York City (June A. Witterschein of counsel), for respondent.

Order, Supreme Court, New York County (Karla Moskowitz, J.), entered May 26, 2006, which granted defendant's motion pursuant to CPLR 3211 (a) (5) to dismiss the complaint, unanimously affirmed, with costs.

In a 2004 action, plaintiff sought damages arising out of defendant's alleged breach of an agreement involving the latter's service of a termination letter, dated November 13, 2002. In May 2005 that action was dismissed based on a contractual statute of limitations, such that the dismissal was on the merits (see Smith v Russell Sage Coll., 54 NY2d 185, 194 [1981]; Marinelli Assoc. v Helmsley-Noyes Co., 265 AD2d 1, 5 [2000]). Thereafter, plaintiff commenced the instant action arising out of the same agreement and termination letter. In lieu of serving an answer, defendant moved to dismiss on the res judicata and collateral estoppel effect of the prior order, and on the ground that the current action, like the prior one, was time-barred.

Both actions arose out of the same contract, were based on the propriety of the same letter, and sought the same damages. The current claim, which arises out of the same transaction, is derivative of the original and previously asserted, thus warranting dismissal (see O'Brien v City of Syracuse, 54 NY2d 353 [1981]). Concur—Mazzarelli, J.P., Saxe, Marlow, Catterson and Malone, JJ.