Jespersen v. Liang, 2007-07918

CourtNew York Supreme Court Appellate Division
Citation890 N.Y.S.2d 103,68 A.D.3d 724,2009 NY Slip Op 9000
Docket Number2007-07918
PartiesMARIA JESPERSEN, Respondent, v. LI SHENG LIANG, Appellant.
Decision Date01 December 2009
68 A.D.3d 724
2009 NY Slip Op 9000
890 N.Y.S.2d 103
LI SHENG LIANG, Appellant.
Appellate Division of the Supreme Court of New York, Second Department.
Decided December 1, 2009.

In an action to recover damages for personal injuries, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Cohalan, J.), dated July 31, 2007, as denied his cross motion to dismiss the complaint on the ground that a prior action with the same parties was previously dismissed with prejudice.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiff alleges that on May 23, 2002 she and the defendant were involved in a motor vehicle accident in which the plaintiff was injured. On October 17, 2003 the plaintiff commenced an action in the Supreme Court, Suffolk County, against the defendant to recover damages for her injuries (hereinafter the first action). The defendant did not interpose an answer and eventually the plaintiff moved for leave to enter a default judgment. The defendant opposed the motion arguing, inter alia, that he had never been served with process. In an order dated March 23, 2005, the Supreme Court, Suffolk County, among other things, directed that a hearing be held to determine the validity of service of process. Before the hearing was held, the

68 A.D.3d 725

plaintiff commenced this action (hereinafter the second action) against the defendant based on the same accident by filing a summons and complaint with the Suffolk County Clerk on May 20, 2005.

Thereafter, on June 14, 2005, counsel for both sides appeared for the hearing in the first action. At the beginning of the hearing, the plaintiff's counsel requested that the court "[mark the case] dismissed without prejudice [since] we have recommenced the action." The court and counsel then discussed the payment of costs, and in particular, who was going to be responsible for payment of the services of a Mandarin interpreter. During this colloquy the defendant's counsel requested that "the case be dismissed with prejudice and I'm going to ask that the court award costs to the defendant." However, there was never any discussion of the merits. At the conclusion of the colloquy, the Supreme Court (Cohalan, J.) stated that it was "denying the plaintiff's motion to dismiss this case without prejudice, is granting the defendant's motion to dismiss this case with prejudice, and...

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3 cases
  • Egbert Square Realty, LLC v. 112–114 Corp.
    • United States
    • New York Supreme Court Appellate Division
    • March 13, 2012
    ...been entered lacks the conclusive character necessary to invoke the doctrine of collateral estoppel ( see Jespersen v. Li Sheng Liang, 68 A.D.3d 724, 725, 890 N.Y.S.2d 103; Towne v. Asadourian, 277 A.D.2d 800, 801, 722 N.Y.S.2d 187; Ruben v. American & Foreign Ins. Co., 185 A.D.2d 63, 65, 5......
  • State v. Massarelli, 526568
    • United States
    • New York Supreme Court Appellate Division
    • December 20, 2018
    ...Contr. Co. v. Port Auth. Trans–Hudson Corp., 93 N.Y.2d 375, 380, 690 N.Y.S.2d 512, 712 N.E.2d 678 [1999] ; Jespersen v. Li Sheng Liang, 68 A.D.3d 724, 725, 890 N.Y.S.2d 103 [2009] ; Matter of Coleman v. Coleman, 1 A.D.3d 833, 834, 767 N.Y.S.2d 169 [2003] ). That said, "the circumstances mus......
  • Itskov v. Menorah Home and Hospital for the Aged and Infirm, 2008-11220
    • United States
    • New York Supreme Court Appellate Division
    • December 1, 2009
    ...43 AD3d 996, 997 [2007]; Schuering v Stella, 243 AD2d 623, 624 [1997]). Here, the defendant's notice dated November 5, 2007 demanding 68 A.D.3d 724 that the plaintiffs serve and file a note of issue cannot be deemed a notice pursuant to CPLR 3216 because it failed to notify the plaintiffs t......

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