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Supreme Court, Appellate Term, New York.

Dr. Eugene SARVER, Plaintiff-Appellant, v. PACE UNIVERSITY, Defendant-Respondent.

Decided: October 21, 2004

Present:  Hon. LUCINDO SUAREZ, P.J., Hon. WILLIAM P. McCOOE, Hon. PHYLLIS GANGEL-JACOB, Justices. Eugene Sarver, appellant pro se. Lisa D. Hayes, New York City, for respondent.

Order entered March 12, 2004 (Eileen A. Rakower, J.) reversed, without costs, and the action is reinstated.

Plaintiff commenced this small claims action against his former employer, defendant Pace University, seeking damages for “Fraud [in the] inducement, indemnification.”   The court properly rejected the res judicata and collateral estoppel theories advanced by defendant in its pre-trial motion to dismiss the action since, as the court noted, defendant failed to conclusively establish that the action “arise[s] from the same transaction and occurrence put forth in [plaintiff's] prior small claims action [against defendant]”.   It was error, however, for the court, sua sponte, to dismiss the action for failure to state a cause of action, a species of dismissal which, given the “informal and simplified procedure” (CCA 1804) governing small claims matters, is rarely, if ever, available in Small Claims Court (see Friedman v. Seward Park Hous. Corp., 167 Misc.2d 57, 58, 639 N.Y.S.2d 648 [1995] ).  “Substantial justice” (CCA 1804, 1807) will best be served by a prompt trial of plaintiff's claim.

This constitutes the decision and order of the court.