TWUMASI v. Robert Medina, Defendant-Respondent. (2002)

Order, Supreme Court, Bronx County (Anne Targum, J.), entered on or about October 10, 2000, which granted the motion of the remaining defendant, Robert Medina, for summary judgment dismissing the complaint, unanimously affirmed, with costs.

This action was previously dismissed as against defendants TJMT and Paccar Financial Corporation on res judicata grounds (see, 267 A.D.2d 153, 701 N.Y.S.2d 20), plaintiff having fully litigated the causes asserted in this action in a prior Federal action.   Although plaintiff's causes were concluded against defendant Medina as well when the Federal action was dismissed by the United States District Court for the Southern District of New York with prejudice (see, Fed Rules Civ Pro, rule 41[b];  McLearn v. Cowen & Co., 48 N.Y.2d 696, 422 N.Y.S.2d 60, 397 N.E.2d 750), this action was not dismissed as against Medina at the time of its dismissal as against his co-defendants since Medina had not at that time appeared in this action.   That impediment to Medina's invocation of the res judicata bar no longer exists, and it is plain that Medina, no less than his codefendants, is entitled to prevail upon that ground.   We note that this action would also be dismissible as against Medina upon the ground, raised in Medina's answer, that the action is time-barred.