| Pereira v St. Joseph's Cemetery |
| 2010 NY Slip Op 08917 [78 AD3d 1141] |
| November 30, 2010 |
| Appellate Division, Second Department |
| Jose Pereira, Appellant, v St. Joseph's Cemetery et al.,Respondents. |
—[*1] Windels Marx Lane & Mittendorf, LLP, New York, N.Y. (Christopher D. Mehno ofcounsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Westchester County (Liebowitz, J.), entered September 29, 2009, whichgranted the defendants' motion pursuant to CPLR 3211 (a) (5) to dismiss the complaint on theground that it was barred by the doctrine of res judicata.
Ordered that the order is reversed, on the law, with costs, and the defendants' motionpursuant to CPLR 3211 (a) (5) to dismiss the complaint on the ground that it was barred by thedoctrine of res judicata is denied.
The plaintiff, a cemetery worker, allegedly was injured on the job in a fall which he allegeswas deliberately caused by fellow employees. The plaintiff commenced an action against thedefendants St Joseph's Cemetery (hereinafter the Cemetery), Church of St. Joseph, and theArchdiocese of New York, the owners and operators of the Cemetery, alleging that he wasintentionally injured. Thereafter, the defendants moved to dismiss the complaint pursuant toCPLR 3211 (a) (7) for failure to state a cause of action, arguing, inter alia, that the Workers'Compensation Law precluded the plaintiff's lawsuit. The motion was denied by the SupremeCourt. However, on appeal to this Court, that order was reversed, and the motion was granted(see Pereira v St. Joseph's Cemetery, 54 AD3d 835 [2008]). This Court determined thatthe allegations of the complaint did "not establish the elements of an intentional tort on the partof the Cemetery so as to fall under the exception to the exclusivity provision of Workers'Compensation Law § 29" (id. at 837).
The plaintiff then commenced this action, which again pleads intentional tort, albeit inrephrased allegations. The defendants moved to dismiss this second complaint pursuant to CPLR3211 (a) (5) as barred by the doctrine of res judicata. The Supreme Court granted the motion. Wereverse.
"Where a dismissal does not involve a determination on the merits, the doctrine of resjudicata does not apply" (Djoganopoulos v Polkes, 67 AD3d 726, 727 [2009]; seeAsgahar v Tringali Realty, Inc., 18 AD3d 408 [2005]; Sclafani v Story Book Homes,294 AD2d 559, 559-560 [2002]). As a general rule, a [*2]dismissal for failure to state a cause of action is not on the meritsand, thus, will not be given res judicata effect (see Maitland v Trojan Elec. & Mach. Co.,65 NY2d 614, 615 [1985]; Asgahar v Tringali Realty, Inc., 18 AD3d at 408; see alsoSullivan v Nimmagadda, 63 AD3d 908, 909 [2009]). Here, our prior dismissal was not onthe merits and, consequently, the doctrine of res judicata was not a bar to the plaintiff's secondaction.
In light of our determination, it is unnecessary to reach the plaintiff's remaining contention.Santucci, J.P., Balkin, Belen and Chambers, JJ., concur.