MUDRY v. GIANNATTASIO (2004)

Supreme Court, Appellate Division, Second Department, New York.

Albert MUDRY, etc., appellant, v. James A. GIANNATTASIO, respondent.

Decided: June 14, 2004

ANITA R. FLORIO, J.P., THOMAS A. ADAMS, BARRY A. COZIER, and ROBERT A. LIFSON, JJ.

Connors and Sullivan, P.C., Brooklyn, N.Y. (Christopher M. Otton of counsel), for appellant. Frank M. Graziadei, P.C., New York, N.Y., for respondent.

In an action, inter alia, to impose a constructive trust on certain real property, the plaintiff appeals from an order of the Supreme Court, Kings County (Ruchelsman, J.), dated August 11, 2003, which granted the defendant's motion to dismiss the complaint on the ground that the action was barred by the doctrine of res judicata.

ORDERED that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.

Because the prior determination upon which the order appealed from was predicated did not indicate an intention to dismiss on the merits, the order cannot be deemed a basis for the application of the doctrines of res judicata or collateral estoppel. Accordingly, the defendant's motion to dismiss should have been denied.

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