Bank of New York v. LS Monticello JV

209 A.D.2d 464, 619 N.Y.S.2d 639, 1994 N.Y. App. Div. LEXIS 11159

Opinion

—In an action to recover money due on a loan agreement, the defendants appeal from an order of the Supreme Court, Westchester County (Nastasi, J.), entered October 29, 1993, which, inter alia, denied their motion to dismiss the complaint pursuant to CPLR 3211 (a) (5) based on the doctrines of res judicata and collateral estoppel.

Ordered that the order is affirmed, with costs.

In denying the defendants’ motion to dismiss the plaintiff’s second complaint pursuant to CPLR 3211 (a) (5) based, inter alia, on the doctrine of res judicata, the Supreme Court indicated that its prior order dismissing the plaintiff’s first complaint pursuant to the Uniform Rules for Trial Courts (22 NYCRR 202.27 [former (2)]), "was not an adjudication on the merits and did not preclude the commencement of a new action by the plaintiff”. In light of the broad latitude afforded a court pursuant to 22 NYCRR 202.27 (former [2]), we conclude that the Supreme Court did not improvidently exercise its discretion in directing dismissal of the first action without prejudice. Accordingly, dismissal of the second action is not warranted. Bracken, J. P., Balletta, Ritter, Pizzuto and Florio, JJ., concur.