results from a lack of subject matter jurisdiction in this Court, the dismissal is without prejudice to the underlying merits. The Clerk of the Court is directed to dismiss the amended complaint in its entirety. IT IS SO ORDERED. 1 . The parties assume that New York’s substantive law governs this case. Because the Court has no reason to believe otherwise, New York law will be applied to decide this motion. 2 . Despite the submission of extra-pleading documents, I need not convert this motion into a motion for summary judgment under Rule 56(c). There are two reasons for this conclusion. First, I am permitted to take judicial notice of documents that are part of the record in the State Action. See 9281 Shore Road Owners Corp. v. Seminole Realty Co., 214 B.R. 676 (Bankr.E.D.N.Y.1997) (<HOLDING>) (emphasis added); Lipin v. American National
holding that it was appropriate for the district court to refer to the documents attached to the motion to dismiss since the documents were referred to in the complaint holding that a court may not take judicial notice of separate legal proceedings on a motion to dismiss and defenses of res judicata and collateral estoppel must be resolved through motion for summary judgment holding that district court has discretion when deciding to convert a defendants motion to dismiss to a motion for summary judgment holding that the facts as admitted through pleadings and documents placed before the court were sufficient to support a partys summary judgment motion holding that in determining motion to dismiss on basis of res judicata the court could take judicial notice of all of the documents which are part of the record before it as well as the documents contained in the record before the state court without having to convert the motion to one for summary judgment