Image: Stuart Miles/

At first blush, the notion that you can get more than one shot to win a New York litigation sounds like precisely the type of fodder for tort reform - and even basic litigation reform - advocacy everywhere. After all, from a defendant's perspective, it's bad enough that I got sued for this once; now you're telling me I can get sued for the same thing again? Stated differently, "When will this case finally be OVER?"

Strange as it may sound, there are instances where a plaintiff can get a proverbial "second bite at the apple" - but those circumstances are very limited.

This is where the doctrine of res judicata, which is Latin for "a claim that has already been judged," (and in legalese is known as "claim preclusion") comes into play.

Under New York law,

"[R]es judicata bars future litigation between the same parties, or those in privity with the parties, of a cause of action arising out of the same transaction or series of transactions as a cause of action that was either raised or could have been raised in a prior proceeding."

As you might - or should - have expected, there is a caveat to this rule:

In order for res judicata to apply, the first case must have reached a final conclusion that was not based on a technicality, but on the actual merits (or the lack thereof) of the case.

Thus, for example, if the first action was dismissed based upon the failure of the complaint to state a claim upon which relief can be granted (i.e., even if everything you claim is true, there is no legal theory under which you can recover under New York law), that will not be deemed a merits-based conclusion, and res judicata will not apply to bar a second claim that is properly pled.

The Takeaway

For litigation reform advocates, rest easy; the news is not nearly as bad as you may think. For those who fear that their case may have been lost - irretrievably - due to a procedural or technical oversight, you should be encouraged, because all may not be lost.

Jonathan Cooper
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Non-Compete, Trade Secret and School Negligence Lawyer