An actions was commenced through the service of a summons without a Complaint. A demand for the Complaint was subsequently made on behalf of the defendant. When still no Complaint was served, a motion to dismiss for failure to timely serve a Complaint was filed. Plaintiff requested that if the Court was going to dismiss the Complaint, that the dismissal be made without prejudice. However, in the Decision and Order, the Judge found that the plaintiff failed to provide a certificate of merit and saw “no legal basis for such remedy, which would render CPLR 3012(b) meaningless, and the relief granted herein a nullity” and explicitly stated the dismissal would not be without prejudice. The plaintiff never moved to appeal or reargue that Decision and Order. After the dismissal of the action, the plaintiff refiled an identical Summons with a Complaint for the same claims. Attorney Heather L. Pollock made a motion to dismiss on behalf of the defendant based on res judicata. The Court agreed, and found that the subsequent refiled action was barred pursuant to res judicata pursuant under CPLR 3211(a)(5) and dismissed the action.
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