Allston v. Incorporated Village of Rockville Centre

• Decision Date: 21 February 1966
• Parties: Carolyn ALLSTON, Appellant, v. INCORPORATED VILLAGE OF ROCKVILLE CENTRE, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 564

267 N.Y.S.2d 564

25 A.D.2d 545

Carolyn ALLSTON, Appellant, v. INCORPORATED VILLAGE OF ROCKVILLE CENTRE, Respondent.

Supreme Court, Appellate Division, Second Department.

Feb. 21, 1966.

Abraham A. Salm, New York City, for appellant; I. Miles Pollack, New York City, of counsel.

Charles E. Quigley, Garden City, for respondent; Harry J. Flood, Garden City, of counsel.

Before BRENNAN, Acting P. J., and HILL, RABIN, HOPKINS and BENJAMIN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injury, plaintiff appeals from an order of the Supreme Court, Nassau County, entered March 19, 1965, which granted defendant's motion to dismiss the complaint.

Order reversed, with $10 costs and disbursements, and motion denied.

Defendant moved to dismiss the complaint upon the grounds of res judicata and failure to state a cause of action. The Special Term granted the motion on the former ground. It appears that a prior action had been instituted by plaintiff based upon the same facts; that defendant moved in that action 'for an order, pursuant to C.P.L.R. §§ 3211 and 3212 dismissing plaintiff's complaint upon the ground that the same does not state a cause of action and upon the further ground that the complaint does not allege the prior written notice required by Village Law § 341a'; and that the court, as stated in its memorandum opinion, granted the motion 'to dismiss the complaint' on the ground that 'the complaint [was] insufficient for the failure to allege facts sufficient to show the responsibility of the defendant for the accident.' The Special Term on the present motion held that the court on the prior motion 'treated [it] as one for summary judgment' and applied the rule that a judgment on such a motion precluded the maintenance of a second action based upon the same transaction where the evidence and issues in both were the same, citing Eidelberg v. Zellermayer (5 A.D.2d 658, 174 N.Y.S.2d 300, affd. 6 N.Y.2d 815, 188 N.Y.S.2d 204, 159 N.E.2d 691).

In our opinion, however, the dismissal of the prior complaint was for failure to state facts sufficient to constitute a cause of action. The judgment on such a motion, which is a substitute for the old demurrer (Lipkind v. Ward, 256 App.Div. 74, 75, 8 N.Y.S.2d 832, 833), is not on the merits (Richard v. American Union Bank, 253 N.Y. 166, 171, 170 N.E. 532, 535, 69 A.L.R. 667) and does not bar another action brought for the same cause, where the defects or omissions...