On August 18, 2017 a Manhattan Supreme Court Justice denied an attorney's motion for pre-trial dismissal of his former clients claim for breach of contract due to excessive billing for legal services. The attorney argued that dismissal was justified since he had obtained dismissal of an earlier (first) lawsuit filed by the client for the exact same claim of excessive billing. The first action was dismissed in August 2016 because the incarcerated client had been barred from testifying at trial due to his repeated failure to appear for depositions. Apparently, he warden of the prison cooperated with the Court Order requiring the plaintiff to appear for the deposition.

Usually a second action filed by the same plaintiff against the same defendant for the same relief is dismissed on the ground of res judicata. The Court denied the attorney's second motion to dismiss the second action holding that the dismissal of the first action was not on the merits so that res judicata did not apply. Rabinowitz v Gottlieb, 2017 WL 3614544