Commissioner of Social Services v. Hargrove

84 A.D.2d 946, 446 N.Y.S.2d 715, 1981 N.Y. App. Div. LEXIS 16220

Opinion

Order unanimously reversed, without costs, and petition reinstated. Memorandum: Petitioner filed several petitions in Family Court charging respondent with being the father of a child bom to her out of wedlock. All were dismissed for varying reasons, most generally because of the nonappearance of one or the other of the parties. At no time did the court address, or have the opportunity to address, the merits of the several petitions. Petitioner appeals from the order dismissing the last petition which was dismissed because the court was of the view that the filing of yet another petition amounted to “harassment” of respondent. The only issue on appeal is whether any of the prior dismissals were “on the merits” or “with prejudice”. We conclude they were not. “A judgment dismissing the complaint upon a plaintiff’s failure to appear is not upon the merits” (Greenberg v De Hart, 4 NY2d 511, 516-517; see, also, Medical Health Servs. v Fountain Center Corp., 52 AD2d 621). (Appeal from order of Erie County Family Court, Trost, J. — paternity.) Present — Dillon, P. J., Hancock, Jr., Doerr, Denman and Moule, JJ.