48 A.D.3d 428
N.Y. App. Div.
2008

Sofia Katzab et al., Appellants, v Nadeem Chaudhry, Respondent.

Supreme Court, Appellate Division, Second Department, New York

849 NYS2d 804

In an action, inter alia, to recover damages for medical malpractice, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Jackson, J.), dated September 21, 2006, which granted the defendant‘s motion to dismiss the complaint pursuant to CPLR 3211 (a) (5) on the ground of res judicata.

Ordered that the order is reversed, on the law, with costs, and the defendant‘s motion to dismiss the complaint is denied.

The Supreme Court erred in granting his motion to dismiss the complaint on the ground of res judicata. New York City Civil Court Act § 1808 provides that “[a] judgment obtained under this article shall not be deemed an adjudication of any fact at issue or found therein in any other action or court; except that a subsequent judgment obtained in another action or court involving the same facts, issues and parties shall be reduced by the amount of a judgment awarded under this article.” Accordingly, it was error to accord the action between the plaintiff Sofia Katzab and the defendant in Small Claims Court res judicata effect and to dismiss the complaint on that basis (see Schutte v Kaufman, 40 AD3d 739 [2007]; Molska v Garfield, 2 AD3d 510, 510-511 [2003]; Cohen v Bloom, 234 AD2d 499 [1996]; Purnavel v Tel-A-Car N.Y., 204 AD2d 297 [1994]).

Spolzino, J.P., Santucci, Lifson and Covello, JJ., concur.