Addeo v. Dairymen's League Co-Op Ass'n

In Addeo v. Dairymen's League Co-Op Ass'n, 47 Misc 2d 426 (Sup Ct, NY Co 1965) the defendant moved for dismissal in part because the prior complaint between the same parties was dismissed pursuant to CPLR 3211(a)(7). The court declined to dismiss the new complaint in spite of the prior dismissal because: "It may be noted preliminarily that a final order of dismissal of a complaint for insufficiency does not preclude another action upon the same transaction merely because there was no compliance with CPLR 3211 (subd. [e]) and leave to replead was not granted. The second action is maintainable if the complaint is good. The complaint in this action is by no means similar to the complaint in the first action and it is good. The prior action it is said, is pending because an appeal has been taken from the order of dismissal. However, leave has been granted to withdraw that appeal and therefore the prior action is not now pending."