| Velinskie v Gottlieb |
| 2012 NY Slip Op 01603 [92 AD3d 941] |
| February 28, 2012 |
| Appellate Division, Second Department |
| Thomas Velinskie, Respondent, v Joel S. Gottlieb et al.,Appellants. |
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Jay R. Viders, PLLC, Commack, N.Y., for respondent.
In an action to recover damages for chiropractic malpractice, the defendants appeal, aslimited by their brief, from so much of an order of the Supreme Court, Kings County (Bunyan,J.), dated March 16, 2011, as denied their motion pursuant to CPLR 3211 (a) (5) to dismiss thecomplaint on the ground of res judicata.
Ordered that the order is affirmed insofar as appealed from, with costs.
In 2007 the plaintiff was the patient of the individual defendant, Joel S. Gottlieb, achiropractor. In 2008 the plaintiff commenced an action in the Small Claims Part of the CivilCourt of the City of New York (hereinafter the Small Claims Action). In February 2009 thataction was dismissed when the plaintiff failed to appear on a scheduled court date.Approximately four months later, the plaintiff commenced this action against Gottlieb and hischiropractic practice in the Supreme Court, seeking to recover damages for chiropracticmalpractice. The parties do not dispute that the claims in the two actions are based on the samefacts. The defendants moved pursuant to CPLR 3211 (a) (5) to dismiss the complaint in thisaction on the ground of res judicata, and the Supreme Court denied the motion. The defendantsappeal, and we affirm the order insofar as appealed from.
A determination not made on the merits is not entitled to res judicata effect (see Franchise Acquisitions Group Corp. vJefferson Val. Mall Ltd. Partnership, 73 AD3d 1123, 1123-1124 [2010]; Morales vNew York City Hous. Auth., 302 AD2d 571, 572 [2003]; Beizer v Malhotra, 2002NY Slip Op 40117[U], *1 [2002]). Here, the dismissal of the plaintiff's Small Claims Action wasnot a determination on the merits (see 22 NYCRR 208.41 [j]). Therefore, res judicatawas not applicable, and the Supreme Court's denial of the defendants' motion was proper. In lightof this determination, we need not address the parties' remaining contentions. Balkin, J.P., Eng,Hall and Sgroi, JJ., concur.