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25308/2019E
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NEW YORK STATE SUPREME COURT

COUNTY OF BRONX
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ALI KETTRLES, JOHN DOES 1-13

Plaintiffs, Index No. 25308/2019

-against-
AFFIRMATION IN
OPPOSITION
THE CITY OF NEW YORK, CORRECTION OFFICERS
JOHN DOES 14-26, JANE DOE

Defendants.

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I, MICHAEL A. HUERTA, an attorney duly licensed to practice law in the State of New

York, affirm the following under penalty of perjury:

1. I am plaintiffs’ counsel in the instant action and am fully familiar with the

proceedings had herein.

2. That this affirmation is made in opposition to the instant motion to dismiss.

3. That the defendants erroneously claim that plaintiffs have a pending action under

Bronx Supreme Court, Index No. 300601/2017. That matter is Watson v City of New York and it

is marked disposed on NYS E-Courts website.

4. That the previous action in this matter is Bronx Supreme Court, Index No.

0302215/2014 and was dismissed pursuant to 22 NYCRR 202.27 on December 10, 2018 for

plaintiff’s failure to appear at a conference. (Exhibit A).

5. That such dismissal was not on the merits of the action. “A dismissal pursuant to

22 NYCRR 202.27(b), based upon failure to attend a scheduled conference, is not “on the

merits.” (Espinoza v Concordia Internal., 32 AD3d 326 [1st Dept 2006]).

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6. The First Department has held that where a dismissal is not on the merits, the

order or judgment should indicate that the dismissal is “without prejudice.” (emphasis supplied).

(Brooks v Harold Haidt, 59 AD3d 233 [1st Dept 2009]; Kalisch v Maple Trade Fin. Corp., 35

AD3d 291 [1st Dept 2006]). In Kalisch, the plaintiff failed to appear at a scheduled conference,

and Supreme Court issued an order dismissing the complaint “with prejudice” (emphasis

supplied). Since the dismissal was not on the merits, the order was modified on appeal, to state

that the dismissal was “without prejudice.”

7. CPLR 205(a) provides: If an action is timely commenced and is terminated in any

other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over

the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final

judgment upon the merits, the plaintiff, or, if the plaintiff dies, and the cause of action

survives, his or her executor or administrator, may commence a new action upon the same

transaction or occurrence or series of transactions or occurrences within six months after the

termination provided that the new action would have been timely commenced at the time of

commencement of the prior action and that service upon defendant is effected within such

six-month period.

8. That the instant action was commenced on May 6, 2019, and served on May 6,

2019. (Exhibit B).

9. That this action was filed and served within the six month period allowed by

CPLR 205(a).

10. This case represents an instance in which a plaintiff can avoid making [a motion]

to vacate a default under section 202.27. * * * 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

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(see Miller Mfg. Co. v Zeiler, 45 NY2d 956 [1978]; Wilson v New York City

AD3d 572 [2005]; Mudry v C es"ssic, 8 AD3d 455 [2004]).

Dated: New York, New York

July 31, 2019

AFFIRMED:

HAE . HUERTA

Attorney for the Plaintiffs

HUERTA PLLC

447 Broadway, #245

New York, New York 10013

212-729-4385

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