:Practice point: Since the complaint in the prior action was dismissed on the ground that it failed to state a cause of action due to the insufficiency of the allegations, the dismissal was not a dismissal on the merits. Therefore, the doctrine of res judicata does not bar the claims in the instant action.
Student note: Plain and simple, where a dismissal does not involve a determination on the merits, the doctrine of res judicata does not apply.
Case: Canzona v. Atanasio, NY Slip Op 04459 (2d Dept. 2014)
Here is the decision.
Monday's issue: Service as jurisdictional.