The complaint should not have been dismissed on grounds of collateral estoppel and res judicata since the prior dismissal was not on the merits (see, Hodge v. Hotel Empls. Rest. Empls. Union, 269 A.D.2d 330, 703 N.Y.S.2d 184). However, dismissal of the first and second causes of action, stemming from damages allegedly sustained by the partnership and condominium, was warranted pursuant to CPLR 3211(a)(3) since the individual plaintiffs were without authority to sue on the behalf of the partnership and condominium. On the other hand, the third cause of action, in which the individual plaintiffs seek direct relief on their own behalf, is not subject to CPLR 3211(a)(3) dismissal and was not otherwise subject to dismissal on defendants' prejoinder motion to dismiss.
The award of sanctions, based on the motion court's erroneous belief that collateral estoppel and res judicata barred this action, should be vacated.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.