Within litigation, should you fail to comply with a deadline (like filing an answer) or to appear in court when directed or required, you can be held in "default" -- which could have an array of adverse consequences (like dismissal of your case or the entry of a money judgment against you).
Typically, in order to correct that situation (or "vacate" the default), you will be required to make a written application or request to the court (known as a "motion") showing:
- a reasonable excuse for the default or delay; and
- the existence of a meritorious claim or defense.
On occasion, these applications can be quite contentious (especially when they are vigorously opposed by an adversary), and can be met with an outright denial by the court. Rather than make the motion, and be subjected to the expense, aggravation, and inconvenience of that kind of rigmarole, can a plaintiff -- who's case has been dismissed for nonappearance -- simply start a new lawsuit?
In the absence of some legal time-bar (like a statute of limitations), an appellate case suggests that other than paying for a new index number, you may be "home free."
In Espinoza v. Concordia Intl. Forwarding Corp. , Espinoza had timely commenced a workplace-related personal injury case against the defendants. After Espinoza's attorney failed to appear for three scheduled court conferences, the lawsuit was dismissed. Over a year later, plaintiff commenced a new action based on the same facts and circumstances.
In response to this second case, the defendants moved to dismiss the litigation arguing that the claims were barred by the doctrine of "res judicata" -- that is, the matter had already been decided by the court and thus could not be revisited. The Bronx County Supreme Court denied the motion and the Appellate Division, First Department, agreed.
As the appellate court observed:
Defendants' contention that this action is barred by the doctrine of res judicata is without merit. A prior order that does not indicate an intention to dismiss the action on the merits is not a basis for the application of the doctrine of res judicata ... Here, the first action was dismissed as a result of plaintiff's counsel's failure to attend a compliance conference, not on the merits.
Thus, in the absence of a "merits determination," or any time-related concerns, plaintiff was free to re-file her case:
Even on these less typical facts, dismissal of plaintiff's first action was not without any adverse consequences, as plaintiff was required to purchase a new index number to commence this action. Although this is a relatively insignificant consequence compared to the prospect of being out of court entirely, it is the only one the law presently permits.
Plaintiff's counsel receive a "gift" from the AD in this instance, don't you think?
As a matter of policy, we don't see why the courts would want to encourage the abandonment of cases. How are the defendants "made whole" by the plaintiff's ability to start anew? What about the fees and expenses incurred by the defendants up to the point of dismissal?
Here's hoping counsel learned a thing or two from the experience.
"If you have made mistakes, even serious mistakes, there is always another chance for you. And supposing you have tried and failed again and again, you may have a fresh start any moment you choose, for this thing we call 'failure' is not the falling down, but the staying down."
Mary Pickford
For a copy of the Appellate Division's decision, please use this link: Espinoza v. Concordia Intl. Forwarding Corp.