Magnezit Med. Care, P.C. v Lumbermens Mut. Cas. Co.

[*1] Magnezit Med. Care, P.C. v Lumbermens Mut. Cas. Co. 2010 NY Slip Op 51054(U) [27 Misc 3d 142(A)] Decided on June 11, 2010 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 11, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and GOLIA, JJ
2009-712 K C.

Magnezit Medical Care, P.C. a/a/o ROSARIO RAUL, Appellant,

against

Lumbermens Mutual Casualty Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered November 25, 2008. The order granted defendant's motion to dismiss the complaint.

ORDERED that the order is reversed without costs and defendant's motion to dismiss the complaint 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 from November 12, 2001 through March 29, 2002. Issue was joined on July 23, 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 10, 2008, plaintiff, without responding to the motion to dismiss, commenced the instant action by filing a summons and complaint (see CCA 400) in Civil Court, Kings County, based on the same cause of action, and for additional relief. 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 to dismiss the complaint in the instant action on the ground of res judicata, citing the Queens County dismissal order. The Civil Court granted the motion based upon plaintiff's failure to have timely filed a note of issue in the first action and for "forum shopping," 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 [*2][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]). Although issues regarding the applicability of the statute of limitations (CPLR 213 [2]) are addressed by the parties on appeal, as they were not raised in the Civil Court, they are not properly before us (e.g. 45-02 Food Corp. v 45-02 43rd Realty LLC, 37 AD3d 522, 526 [2007]; DeLeonardis v Brown, 15 AD3d 525, 526 [2005]; Davidson v Public Adm'r, 283 AD2d 538, 540 [2001]).

Accordingly, the order granting defendant's motion to dismiss the complaint is reversed and the motion denied.

Pesce, P.J., Weston and Golia, JJ., concur.
Decision Date: June 11, 2010