pendent claim in New York

1994While res judicata effect is given to judgments on the merits rendered by Federal courts (see, Murray v National Broadcasting Co., supra), res judicata will not bar a State action where it is clear that the pretrial dismissal of the Federal cause of action did not include adjudication of a pendent State claim on its merits (McLearn v Cowen & Co., 660 F2d 845; McLearn v Cowen & Co., 60 NY2d 686 ; Lamontagne v Board of Trustees, 183 AD2d 424, 425 , lv denied 80 NY2d 759 ). "[W]hether this is because the Federal court lacks jurisdiction over pendent State claims once it dismisses a Federal claim

1992Nevertheless, in McLearn v Cowen & Co. ( 60 NY2d 686 ), the Court of Appeals held that a Federal action does not have res judicata effect on a State action where it was clear that the pretrial dismissal of Federal causes of action did not include adjudication of a pendent State claim on its merits.

1993The defendants further allege that they relied upon precedent including Leather’s Best v S. S. Mormaclynx (451 F2d 800), an admiralty case wherein the court abandoned an "unnecessarily grudging” approach to pleading for an approach which favored trying both Federal and State claims arising out of " 'a common nucleus of operative facts’ ” in one judicial proceeding, regardless of whether the pendent State claim had been separately stated and labeled (Leather’s Best v S. S. Mormaclynx, supra, at 809, quoting United Mine Workers v Gibbs, 383 US 715, 725 ).

1983Once the District Court dismissed plaintiff’s Federal claim before trial it lost any jurisdiction it would have had to consider a pendent State claim (United Mine Workers of Amer. v Gibbs, 383 US 715, 726 ; McLearn v Cowen & Co., 660 F2d 845, 848). * Thus, as the Federal dismissal did not constitute a dismissal on the merits (Rudd v Cornell, 171 NY 114 ), and as the Federal court could not have decided the issue of the limitation period applicable to plaintiff’s contract claim, plaintiff is not collaterally estopped from now asserting that the period is six years.

1998Citing this Court’s decision in Lamontagne v Board of Trustees ( 183 AD2d 424 , Iv denied 80 NY2d 759 ), Supreme Court held: “The dismissal of the pendent State claim by the Federal Court based upon the [S]tatute of [L]imitations was neither an issue raised by the parties nor conceded by the plaintiff, as the Federal Court mistakenly believed.

1994While res judicata effect is given to judgments on the merits rendered by Federal courts (see, Murray v National Broadcasting Co., supra), res judicata will not bar a State action where it is clear that the pretrial dismissal of the Federal cause of action did not include adjudication of a pendent State claim on its merits (McLearn v Cowen & Co., 660 F2d 845; McLearn v Cowen & Co., 60 NY2d 686 ; Lamontagne v Board of Trustees, 183 AD2d 424, 425 , lv denied 80 NY2d 759 ). "[W]hether this is because the Federal court lacks jurisdiction over pendent State claims once it dismisses a Federal claim

1994While res judicata effect is given to judgments on the merits rendered by Federal courts (see, Murray v National Broadcasting Co., supra), res judicata will not bar a State action where it is clear that the pretrial dismissal of the Federal cause of action did not include adjudication of a pendent State claim on its merits (McLearn v Cowen & Co., 660 F2d 845; McLearn v Cowen & Co., 60 NY2d 686 ; Lamontagne v Board of Trustees, 183 AD2d 424, 425 , lv denied 80 NY2d 759 ). "[W]hether this is because the Federal court lacks jurisdiction over pendent State claims once it dismisses a Federal claim

1992As this court has noted, whether this is because the Federal court lacks jurisdiction over pendent State claims once it dismisses a Federal claim prior to trial (see, McLearn v Cowen & Co., 660 F2d 845, 848), or because the Federal court is presumed to have declined to exercise its discretionary pendent jurisdiction over the State law claims (supra, at 851 [Lasker, J., concurring]), the result is the same as long as there is no clear indication by the Federal court that there was a dismissal of the State claim on the merits (Evans v Rothschild, Unterberg, Towbin, 131 AD2d 278, 282-283 ).

1992Merzon v County of Suffolk ( 767 F Supp 432 , supra ) is a good illustration.

1992Merzon v County of Suffolk ( 767 F Supp 432 , supra) is a good illustration.

1989The Federal claim under title VII would proceed to Federal court once the State Division and the EEOC are finished with it, but the State claim under the Human Rights Law would have to remain in the State Division (Hunnewell v Manufacturers Hanover Trust Co., 628 F Supp 759, 761 , applying the Age Discrimination in Employment Act [ 29 USC § 621 et seq.], which has a deferral prerequisite similar to that of title VII [ 29 USC § 633 (b)]; see also, Meschino v International Tel. & Tel.

1983Once the District Court dismissed plaintiff’s Federal claim before trial it lost any jurisdiction it would have had to consider a pendent State claim (United Mine Workers of Amer. v Gibbs, 383 US 715, 726 ; McLearn v Cowen & Co., 660 F2d 845, 848). * Thus, as the Federal dismissal did not constitute a dismissal on the merits (Rudd v Cornell, 171 NY 114 ), and as the Federal court could not have decided the issue of the limitation period applicable to plaintiff’s contract claim, plaintiff is not collaterally estopped from now asserting that the period is six years.

1981Therefore, the New York judgment bars the instant plaintiff’s pendent state claim under the doctrine of res judicata.” The court continued, stating that if res judicata did not preclude consideration of plaintiff’s State-law claims it would decline to exercise pendent jurisdiction ( 443 F Supp, at p 525 ).