| Franchise Acquisitions Group Corp. v Jefferson Val. Mall Ltd.Partnership |
| 2010 NY Slip Op 04543 [73 AD3d 1123] |
| May 25, 2010 |
| Appellate Division, Second Department |
| Franchise Acquisitions Group Corp.,Respondent, v Jefferson Valley Mall Limited Partnership,Appellant. |
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In an action, inter alia, for a judgment declaring that the plaintiff is not in breach of a certainlease and to recover damages for malicious prosecution, the defendant appeals from an order ofthe Supreme Court, Westchester County (Rudolph, J.), entered February 17, 2009, which deniedits motion to dismiss the complaint on the ground that it was barred by the doctrine of resjudicata or, alternatively, to dismiss the cause of action to recover damages for maliciousprosecution as time-barred.
Ordered that the order is affirmed, with costs.
The prior action involving the same parties, which was commenced in the Supreme Court,Westchester County, on January 11, 2006, was dismissed pursuant to 22 NYCRR 202.27 (b) inan order dated October 31, 2007, based on the plaintiff's failure to appear at a scheduled pretrialconference. This Court affirmed the dismissal in a decision and order dated May 13, 2008,finding that the plaintiff failed to set forth a reasonable excuse for its failure to appear at theconference (see Franchise Acquisitions Group Corp. v Jefferson Val. Mall Ltd.Partnership, 51 AD3d 717 [2008]).
Contrary to the defendant's contention, the dismissal of the prior action was upon theplaintiff's default, and thus did not constitute a determination on the merits (see Kaufman vEli Lilly & Co., 65 NY2d 449, 456-457 [1985]; Merchants Ins. Group v Hudson Val.Fire Protection Co., Inc., 72 AD3d 762 [2010]; Persaud v Pharsi, 70 AD3d 660[2010]). Accordingly, the doctrine of res judicata, which bars future actions if a valid finaljudgment on the merits was rendered in a prior action between the same parties and on the samecause of action (see Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 347-348[1999]; O'Brien v City of Syracuse, 54 NY2d 353, 357 [1981]; Matter of Segreto vGrannis, 70 AD3d 704 [2010]), does not apply to bar the instant action (seeDjoganopoulos v Polkes, 67 AD3d 726 [2009]; Brooks v Haidt, 59 AD3d 233[2009]). Moreover, the record does not support the defendant's contention that the prior actionwas dismissed for failure to prosecute (see CPLR 205 [a]; 3216). Accordingly, theplaintiff was entitled to rely on the six-month tolling provision set forth in CPLR 205 (a) incommencing the instant action on July 10, [*2]2008 (seeBurns v Pace Univ., 25 AD3d 334 [2006]; see also Andrea v Arnone, Hedin, Casker,Kennedy & Drake, Architects & Landscape Architects, P.C. [Habiterra Assoc.], 5 NY3d514, 519 [2005]).
Further, because the malicious prosecution cause of action asserted in the prior action wastimely asserted, the identical malicious prosecution cause of action asserted in the amendedcomplaint in the instant action is not time-barred (see CPLR 205 [a]; 215 [3]). Mastro,J.P., Miller, Leventhal and Belen, JJ., concur.