Opinion
April 4, 1995
Appeal from the Supreme Court, New York County (Edward J. Greenfield, J.).
The IAS Court erred in failing to hold that the March 13, 1981 dismissal of the Texas Federal court action for plaintiffs' failure to prosecute precluded the instant action, since Federal Rules of Civil Procedure, rule 41 (b) permits such dismissal to operate as an adjudication upon the merits.
The Second Circuit appeal pending at the time of the Texas dismissal, and purported by plaintiffs to bar such dismissal, in fact had no such effect. Plaintiffs appealed the denial of their motion pursuant to Federal Rules of Civil Procedure, rule 41 (a) (2) for voluntary dismissal of the action which, prior to the motion, had been transferred from the Southern District of New York to the Southern District of Texas, Galveston Division. Inasmuch as the denial of dismissal was an unappealable interlocutory order (see, 28 U.S.C. § 1291; CES Publ. Corp. v St. Regis Publs., 531 F.2d 11, 15; Paturzo v Home Life Ins. Co., 503 F.2d 333, 336), the appeal was a nullity and not a bar to dismissal of the action by the Texas Federal District Court (see, Century Laminating v Montgomery, 595 F.2d 563, 567, cert granted 444 U.S. 897, cert dismissed 444 U.S. 987; Trice v Commercial Union Assur. Co., 334 F.2d 673, 676, cert denied 380 U.S. 915).
The failure to prosecute was manifest here. Plaintiffs' counsel, with his clients' apparent support, had strongly indicated that the case would not be prosecuted in the Texas venue and that intention was supported by the record, including counsel's well-documented, repeated, contumacious conduct to that effect.
Since the parties and claims in the instant matter are unquestionably the same as those which were involved in the Texas matter, the IAS Court should have applied principles of res judicata and granted defendants' motion to dismiss. In view of our holding on this issue, we need not reach the merits of the other issues raised on this appeal.
Concur — Sullivan, J.P., Rosenberger, Kupferman and Williams, JJ.