General
Randy Hernandez, an Infant, by His Mother and Natural Guardian, Yalitza Diaz, Respondent, v. St. Barnabas Hospital, Appellant, et al., Defendants
89 A.D.3d 457931 N.Y.S.2d 875·New York Supreme Court, Appellate Division·2011·NY
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Opinion
Randy Hernandez, an Infant, by His Mother and Natural Guardian, Yalitza Diaz, Respondent, v St. Barnabas Hospital, Appellant, et al., Defendants.
[931 NYS2d 875]
[MAJORITY]
Supreme Court correctly determined that this action is not barred by the doctrine of res judicata. The prior action was dismissed as a result of plaintiffs counsel’s failure to attend a calendar call (see 22 NYCRR 202.27 [b]). Accordingly, the dismissal was not on the merits and thus does not have res judicata effect (Espinoza v Concordia Intl. Forwarding Corp., 32 AD3d 326, 328 [2006]; Kalisch v Maple Trade Fin. Corp., 35 AD3d 291 [2006]). We have considered defendant’s remaining contentions and find them unavailing. Concur — Mazzarelli, J.R, Saxe, Acosta, DeGrasse and Manzanet-Daniels, JJ.