Opinion
2021-05802 2021-00406 Index 651039/20
10-21-2021
Andres Tobon, Plaintiff-Respondent, v. Pita Off the Corner, Inc., et al., Defendants-Appellants, ABC Corporations 1-3 etc., Defendants. Appeal No. 14443
Adam Waknine, Brooklyn, for appellants. Jardim, Meisner & Susser, P.C., New York (Scott D. Salmon of counsel), for respondent.
Adam Waknine, Brooklyn, for appellants.
Jardim, Meisner & Susser, P.C., New York (Scott D. Salmon of counsel), for respondent.
Before: Renwick, J.P., Kapnick, Scarpulla, Rodriguez, Higgitt, JJ.
Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered January 5, 2021, which, to the extent appealed from as limited by the briefs, denied defendants' motion to dismiss the complaint, unanimously affirmed, without costs.
Plaintiff commenced this action alleging that defendants reneged on a promise to sell him a Manhattan restaurant. In 2016, plaintiff timely commenced a prior action alleging breach of contract, unjust enrichment and fraud. In 2019, Supreme Court "administratively" dismissed the action when the parties failed to appear for a status conference. When Supreme Court denied plaintiff's motion to vacate the dismissal, plaintiff commenced this action alleging the same claims asserted in the prior action.
Defendants do not contest that plaintiff timely commenced this action pursuant to the savings provision of CPLR 205(a). Contrary to defendants' contention, the denial of plaintiff's motion to reinstate his 2016 action involving the same claims, which was administratively dismissed in 2019, did not have preclusive effect. The court's determination that plaintiff did not proffer a meritorious claim to justify vacating the default, without more, did not constitute a determination on the merits to bar the instant action by the doctrine of res judicata (see Brooks v Haidt, 59 A.D.3d 233, 234 [1st Dept 2009]). Similarly, since there was no actual disposition of the 2016 action on the merits, neither collateral estoppel nor law of the case are applicable here (see Kaufman v Eli Lilly & Co., 65 N.Y.2d 449, 455-456 [1985]; Thompson v Cooper, 24 A.D.3d 203, 205 [1st Dept 2005]).