This is especially true because the Appellate Division, Second Department has recently held that "leave to discontinue an action without prejudice should not be granted to enable a plaintiff to circumvent the effect of a court order in the defendant's favor precluding some of plaintiff's proof of malpractice, since prejudice would inure to the defendant." Angerame v. Nissenbaum, 617 N.Y.S.2d 194, 195 (2d Dep't 1994). If an order affecting an evidentiary proffer precludes a dismissal without prejudice, it follows that an order adjudicating a case on the merits must have res judicata effect.
C. State Court Jurisdiction
Plaintiffs also argue that the Supreme Court, Rockland County lacked jurisdiction to transfer venue and that the two orders of dismissal were therefore without effect. Where, as here, a defendant seeks to transfer venue from an improper county to a proper county, it must first serve the plaintiff with a written demand to change venue before or with the service of answer, and then move to change venue within fifteen days thereafter. See N.Y. C.P.L.R. §§ 511 (McKinney 1976); Vacant Lots, Inc. v. Town Bd. of Liberty, 116 A.D.2d 865, 498 N.Y.S.2d 187, 188 (3rd Dep't. 1986); Hughes v. Nigro, M.D., 108 A.D.2d 722, 484 N.Y.S.2d 889, 890 (2d Dep't. 1985); Allstate Ins. Co. v. J.D. Whiting, Inc., 71 A.D.2d 1053, 420 N.Y.S.2d 808, 809 (4th Dep't. 1979). If the plaintiff contests the demand by affidavit within five days, the defendant must make the ensuing motion in accordance with the standard rules of motion practice, i.e., in the county where the action is pending or an adjacent county. See N.Y. C.P.L.R. §§ 511(b), 2212(a); Vacant Lots, 498 N.Y.S.2d at 188; Hughes, 484 N.Y.S.2d at 890; Allstate, 420 N.Y.S.2d at 809. If, however, the plaintiff fails to contest the demand by affidavit within five days, the defendant may move for a change of venue in the alleged proper county of venue. See N.Y. C.P.L.R. § 511(b); Vacant Lots, 498 N.Y.S.2d at 188; Hughes, 484 N.Y.S.2d at 890; Allstate, 420 N.Y.S.2d at 809.
In this case, defendant Rockland County failed to serve a demand to change venue with its initial answer on March 4, 1992, which plaintiffs rejected as "grossly untimely."
Pltfs. Mem. Exh. 23; Page Supp. Aff. P 4, Exh. K; Rockland Supp. Rule 3(g) St. P 2. By order dated April 7, 1992, however, the Supreme Court, New York County granted defendants an extension of time to serve their answers.
Page Supp. Aff. PP 5-6, Exhs. L, M & N. On May 8, 1992, defendant Rock land County then served its answer and a demand for a change of venue. Pltfs. Mem. Exhs. 23-24; Page Supp. Aff. P 8, Exhs. O & P. On May 19, 1992, Rockland County then filed a motion for a change of venue in the Supreme Court, Rockland County, well within the fifteen-day deadline. Page Supp. Aff. Exh. R. On July 23, 1992, approximately two months later, plaintiffs filed an affidavit in opposition. Pltfs. Mem. Exh. 25; Page Supp. Aff. P 11, Exh. S.
Accordingly, because plaintiffs failed to file their affidavit within the five-day period set forth by N.Y. C.P.L.R. § 511(b), Rock land County properly filed its motion to change venue in the Supreme Court, Rockland County, which it contended was the proper county of venue. In any event, even assuming that Rockland County moved in the wrong county, the two orders of dismissal are "not void as lacking in subject-matter jurisdiction because the Supreme Court is a court possessing statewide jurisdiction and is thus technically competent to entertain a motion no matter where the underlying action is pending." Cwick v. City of Rochester, 54 A.D.2d 1078, 388 N.Y.S.2d 753, 754 (4th Dep't. 1976); see also Velasquez v. Pine Grove Resort Ranch, Inc., 77 Misc. 2d 329, 354 N.Y.S.2d 65, 67-68 (Sup. Ct. Ulster County 1974); Ronan v. Levitt, 73 Misc. 2d 35, 341 N.Y.S.2d 176, 179 (Sup. Ct. Albany County), aff'd, 42 A.D.2d 10, 344 N.Y.S.2d 624 (3rd Dep't. 1973).
D. Finality of Judgments
Lastly, plaintiffs argue that the state court dismissals are not final judgments because notices of appeal have been filed with the Appellate Division, Second Department. Under New York law, however, the mere pendency of an appeal does not deprive a challenged judgment of its res judicata effects. See Petrella v. Siegel, 843 F.2d 87, 90 (2d Cir. 1988); Brown v. Manufacturers Hanover Trust Co., 602 F. Supp. 549, 551 (S.D.N.Y. 1984); Parkhurst v. Berdell, 110 N.Y. 386, 392-93, 18 N.E. 123 (1888); Samhammer v. Home Mut. Ins. Co., 120 A.D.2d 59, 507 N.Y.S.2d 499, 502-03 (3rd Dep't. 1986); In the Matter of Amica Mutual Ins. Co., 85 A.D.2d 727, 445 N.Y.S.2d 820, 822 (2d Dep't. 1981).
The Court therefore concludes that unless and until the state court judgments are reversed by the Appellate Division, Second Department, they continue to constitute final and binding adjudications.
The instant action against defendants Raab, Rockland County, Taggart, Murphy, Grant, Green and Gribetz is barred under the doctrine of res judicata. The Clerk of the Court is directed to enter judgment in favor of these defendants as to all claims asserted by plaintiffs. It should be noted, however, that the Court will vacate this Order should the Appellate Division, Second Department reverse the Supreme Court, Rockland County.
As noted above, non-moving defendants Muhammad and Goldome have asserted cross-claims against defendant Rockland County, which has filed cross-claims against defendants Raab, Muhammad and Goldome. Accordingly, plaintiffs and defendants Muhammad, Goldome, Raab and Rockland County are directed to appear at a Pre-Trial Conference on February 17, 1995 at 10:30 a.m. in Courtroom 705.
It is SO ORDERED.
Dated: New York, New York
January 5, 1995
John E. Sprizzo
United States District Judge