Supreme Court, Appellate Term, First Department, October 21, 2004

APPEARANCES OF COUNSEL

Eugene Sarver, appellant pro se. Lisa D. Hayes, New York City, for respondent.

Per Curiam.

{**5 Misc 3d at 71}Order entered March 12, 2004 reversed, without costs, and the action is reinstated.

Plaintiff commenced this small claims action against his former employer, defendant Pace University, seeking damages for "[f]raud [in the] inducement, indemnification." The court properly rejected the res judicata and collateral estoppel theories advanced by defendant in its pretrial motion to dismiss the action since, as the court noted, defendant failed to conclusively establish that the action "arise[s] from the same transaction and occurrence put forth in [plaintiff's] prior small claims action [against defendant]." It was error, however, for the court, sua sponte, to dismiss the action for failure to state a cause of action, a species of dismissal which, given the "informal and simplified procedure" (CCA 1804) governing small claims matters, is rarely, if ever, available in Small Claims Court (see Friedman v Seward Park [*2]Hous. Corp., 167 Misc 2d 57, 58 [1995]). "Substantial justice" (CCA 1804, 1807) will best be served by a prompt trial of plaintiff's claim.

Suarez, P.J., McCooe and Gangel-Jacob, JJ., concur.