police officer. She brought an action under GML 205-e, the statutory violation being Labor Law 27-a(3)(a)(1). AD2, in Blake v. City of New York, 109 A.D.3d 503, dismissed that action, holding that while that Labor Law section was a proper predicate for 205-e liability, the officer had failed to allege that her injuries resulted from a recognized hazard' within the meaning of the Labor Law."
Now, back comes Officer Blake alleging the same facts but adding the express allegation that her injuries "re- sulted from a recognized hazard within the meaning of Labor Law § 27-a(3)(a)(1)." The City moves to dismiss under res judicata and Supreme Kings denies the motion.
AD2 reverses and dismisses. While res judicata usually requires that a case be adjudicated on its merits and while a 3211(a)(7) motion is not a determination on the merits, its prior decision has a "preclusive effect" on this new complaint for the same cause of action which, once again, fails to correct the defect in the old one.
The court explains that its prior decision was not really based solely on the failure to include the statutory language in the complaint, but also dis- cussed its factual allegations and subs- tantive caselaw, "when taken as a whole", determined that even if the facts alleged were true, they would not state a cause of action. Since the facts in this second complaint were no different than the facts in the first, the court's decision as to the first complaint bars this one as well.
When is a 3211 motion not merely procedural? When the Appellate Division thinks it's being played and says it isn't.