Mildred A. McLearn v. Cowen & Co., and Merrill Lynch, Pierce, Fenner & Smith, Incorporated

Summary

The New York Court of Appeals reversed the Appellate Division’s order granting dismissal, holding that the dismissal on res judicata was erroneous because the federal court’s dismissal did not include the state‑law claim, and that dismissal on the alternative ground of failure to state a cause of action was also erroneous because the plaintiff was not afforded the CPLR 3211(e) opportunity to replead. The court reinstated the lower court’s denial of the motion to dismiss, without prejudice to a future CPLR 3211 motion.