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Does this make sense?

A.B. Med. Servs., PLLC v New York Cent. Mut. Fire Ins. Co., 2010 NY Slip Op 50702(U)(App. Term 2d Dept. 2010)

“Plaintiffs’ prior action was dismissed pursuant to CPLR 3126 (3), but the dismissal order did not state that the dismissal was with prejudice, nor does a review of the record reveal the existence of a preclusion order. Consequently, plaintiffs were not barred from [*2]commencing a second action. Accordingly, the District Court properly denied defendant’s pre-answer motion to dismiss the complaint based on the doctrine of res judicata.”

If the striking of a complaint is such an extreme remedy, only available upon the willful and contumacious behavior of the plaintiff, then why does it carry  less of a sanction than preclusion?  Secondly, would we have had the same outcome had an answer been stricken?  Do we have a 14th Amendment issue?  Interesting.

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One Response

  1. To venture a guess, at some point defendant made a foolish tactical decision. The “willful and contumacious” standard, as you know, is generally ignored as an expedient solution to silly motions. Forest through the trees stuff.

    Yes, it makes sense.

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