Sunday, June 29, 2008

No Do-Over for Non-Compliance with So-Ordered Discovery Stipulation

First Help Acupuncture, P.C. a/a/o Simone Brin v. State Farm Mut. Auto. Ins. Co.
(App. Term, 2nd Dept., decided 4/3/2008)

After plaintiff medical provider's first action was dismissed for its non-compliance with a so-ordered discovery stipulation, it commenced this second, identical action, and State Farm moved to dismiss the complaint based on doctrine of res judicata.

In AFFIRMING Kings Civil's grant of summary judgment to State Farm, the Appellate Term held:
Although the court's order dismissing the prior action did not specifically state that the dismissal of the action was with prejudice or on the merits, since the so-ordered discovery stipulation provided for preclusion, the dismissal was with prejudice and, as a result, plaintiff was barred from commencing a second action (citations omitted). Accordingly, the court below properly granted defendant's motion for summary judgment dismissing the complaint based on the doctrine of res judicata.

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