Capps v. Johnson

Appellate Division of the Supreme Court of New York

Capps v. Johnson

283 A.D.2d 975, 725 N.Y.S.2d 249, 2001 N.Y. App. Div. LEXIS 4629

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 2, 2001

StatusPublished

This text of 283 A.D.2d 975 (Capps v. Johnson) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Capps v. Johnson, 283 A.D.2d 975, 725 N.Y.S.2d 249, 2001 N.Y. App. Div. LEXIS 4629 (N.Y. Ct. App. 2001).

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Opinion

—Order unanimously reversed on the law without costs, motion reinstated and matter remitted to Monroe County Family Court for further proceedings in accordance with the following Memorandum: Family Court erred in dismissing respondent’s motion pursuant to CPLR 5015 to vacate an arrears judgment on the ground that it was barred by res judicata. The dismissal of a proceeding for failure to prosecute is not a dismissal on the merits and thus does not bar a second proceeding “[ujnless the order specifies otherwise” (CPLR 3216 [a]; see, Maitland v Trojan Elec. & [976]*976Mach. Co., 65 NY2d 614, 615-616; Spring Sheet Metal & Roofing Co. v Koppers Indus., 273 AD2d 789). Here, the court’s dismissal did not specify “on the merits.” Thus, we reverse the order, reinstate the motion and remit the matter to Monroe County Family Court to determine the motion. (Appeal from Order of Monroe County Family Court, Taddeo, J. — Vacate Judgment.) Present — Green, J. P., Hayes, Scudder, Burns and Lawton, JJ.

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—Order unanimously reversed on the law without costs, motion reinstated and matter remitted to Monroe County Family Court for further proceedings in accordance with the following Memorandum: Family Court erred in dismissing respondent’s motion pursuant to CPLR 5015 to vacate an arrears judgment on the ground that it was barred by res judicata. The dismissal of a proceeding for failure to prosecute is not a dismissal on the merits and thus does not bar a second proceeding “[ujnless the order specifies otherwise” (CPLR 3216 [a]; see, Maitland v Trojan Elec. & [976]*976Mach. Co., 65 NY2d 614, 615-616; Spring Sheet Metal & Roofing Co. v Koppers Indus., 273 AD2d 789). Here, the court’s dismissal did not specify “on the merits.” Thus, we reverse the order, reinstate the motion and remit the matter to Monroe County Family Court to determine the motion. (Appeal from Order of Monroe County Family Court, Taddeo, J. — Vacate Judgment.) Present — Green, J. P., Hayes, Scudder, Burns and Lawton, JJ.

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Bluebook (online)

283 A.D.2d 975, 725 N.Y.S.2d 249, 2001 N.Y. App. Div. LEXIS 4629, Counsel Stack Legal Research, https://law.counselstack.com/opinion/capps-v-johnson-nyappdiv-2001.

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