Jespersen v. Liang, 2007-07918
| Court | New York Supreme Court Appellate Division |
| Citation | 890 N.Y.S.2d 103,68 A.D.3d 724,2009 NY Slip Op 9000 |
| Docket Number | 2007-07918 |
| Parties | MARIA JESPERSEN, Respondent, v. LI SHENG LIANG, Appellant. |
| Decision Date | 01 December 2009 |
v.
LI SHENG LIANG, Appellant.
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
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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