Opinion
May 28, 1991
Appeal from the Supreme Court, New York County (Beverly S. Cohen, J.).
Plaintiffs filed an amended complaint in federal court virtually identical to the instant complaint, except that it contained, in addition to causes of action sounding in fraud and misrepresentation, a claim under the Racketeer Influenced and Corrupt Organization Act (RICO 18 U.S.C. § 1961 et seq.). Upon dismissal of the federal action, in its entirety, plaintiffs commenced the instant State action on their fraud and misrepresentation claims.
The District Court, upon dismissing plaintiffs' RICO claim, noted that when a federal claim is dismissed prior to trial any pendent State claim should likewise be dismissed. It is clear that the federal court declined to exercise pendent jurisdiction over the State claims and that it made no determination on the merits with respect to those claims. (Evans v Rothschild, Unterberg, Towbin, 131 A.D.2d 278.) Accordingly, defendants' motion, based upon the doctrine of res judicata was properly denied. Furthermore, we agree that defendants' motion was so completely without merit as to be frivolous within the meaning of 22 NYCRR 130-1.1 (c). (Nolan Co. v Daly, 170 A.D.2d 320.)
Concur — Ellerin, J.P., Wallach, Kupferman, Asch and Kassal, JJ.