Opinion
December 4, 1995
Appeal from the Supreme Court, Queens County (Lerner, J.).
Ordered that the order is modified, on the law, by deleting the provision thereof which denied the branch of the appellants' motion which was to dismiss the plaintiffs' second cause of action insofar as it is asserted against them, and substituting therefor a provision granting that branch of the appellants' motion; as so modified, the order is affirmed, without costs or disbursements.
Since the court's prior order dismissing the plaintiff Daniel Tubridy's cause of action alleging violations of his civil rights under 42 U.S.C. § 1983 was not a determination on the merits, he was not precluded from reasserting the cause of action under 42 U.S.C. § 1983 in his second complaint (see, De Ronda v Greater Amsterdam School Dist., 91 A.D.2d 1088; Siegel, N Y Prac § 446, at 676 [2d ed]). Therefore, the court properly declined to dismiss that cause of action on the ground of res judicata.
The court erred, however, in failing to dismiss Patricia Tubridy's derivative cause of action because that cause of action was precluded by the prior dismissal (see, 175 E. 74th Corp. v Hartford Acc. Indem. Co., 51 N.Y.2d 585, 590, n 1).
Contrary to the appellants' contention, there is no reason to impose sanctions or costs on the plaintiffs or their attorneys. Sullivan, J.P., Altman, Hart and Friedmann, JJ., concur.