The respondents in the case are Sandra Greenberg and Myron Greenberg. The respondents are represented by Manuel J. Steinberg, Alfred Joffe, from New York City. The appellant in the case is William De Hart, who is an infant over the age of fourteen years and is represented by Raymond M. De Hart as the guardian ad lien. The appellant is being represented by Manley H. Thaler from Ithaca.
In a Kings County Supreme Court action for the recovery of medical expenses and personal injuries as well as loss of services, this is an appeal case from the order that denies a motion for the complaint to be dismissed on the basis of res judicata, from the Rules of Civil Practice, rule number 107, division 4.
The court orders the reversal of the order and the motion is granted. The costs and disbursements equal $10 and the cost of granting the motion is $10.
A New York Injury Lawyer said that before the current action commenced, the respondents had asserted causes of action against the appellant in a case that was commenced in the Kings County court. The causes of action were consolidated along with actions for recovering damages for the injury of a property started by the appellant against the respondent Myron Greenburg, in the Cortland County court. When the case appeared for trial in the Cortland County court, the respondents failed to appear. The case was then marked as ready by the appellant’s lawyers and placed on the calendar as ready for disposition. During the following term, the action reached trial and the respondents did not appear, even though the attorney for the respondents had been given the date for the trial.
The claim in the case made by the appellant for the damage to his property was settled and the only issue left for trial was the personal injury case of the respondent. A Bronx Personal Injury Lawyer said the appellant went through the action of trial in the case and gave his testimony with witnesses present. After the evidence was given the trial court granted the motion to dismiss the complaint in favor of the appellant. This is the ruling that was entered by the courts.
In the opinion of this court, the initial judgment is a complete bar to the re-litigation of the same cause of action. It is thereby determined that the dismissal of a previous complaint that has the same cause of action is not the result of a judgment based on merits. The complaint was dismissed through a motion by the defendants on the grounds that the plaintiffs did not appear and therefore offered no evidence. Additionally, the dismissal was based on evidence that was provided by the appellant, which in this case the judgment was properly stated to be within its merits. This is according to the Civil Practice Act section 482, and 494-a.
Three of the five judges in the case concur with this finding. The other two judges dissent with the vote to affirm that includes the following memorandum:
A Brooklyn Personal Injury Lawyer said the judgment that dismissed the prior action is not on the merits, despite being recited to that effect. We feel that the respondents should not be deprived of their initial cause of action under the circumstances of the case and the execution of a full bill of costs would be a sufficient penalty for their non appearance at the trial.
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