Lincoln First Bank v. Palmyra Motors, Inc.

Appellate Division of the Supreme Court of New York

Lincoln First Bank v. Palmyra Motors, Inc.

84 A.D.2d 670, 446 N.Y.S.2d 621, 1981 N.Y. App. Div. LEXIS 15790

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

DecidedOctober 30, 1981

StatusPublished

Cited by1 cases

This text of 84 A.D.2d 670 (Lincoln First Bank v. Palmyra Motors, Inc.) 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.

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Lincoln First Bank v. Palmyra Motors, Inc., 84 A.D.2d 670, 446 N.Y.S.2d 621, 1981 N.Y. App. Div. LEXIS 15790 (N.Y. Ct. App. 1981).

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Opinion

Order unanimously modified and, as modified, affirmed, without costs, in accordance with the following memorandum: Conceding that on defendant’s motion under CPLR 3215 (subd [c]) Special Term properly dismissed the complaint as abandoned, plaintiff appeals only from so much of the order as directed that the dismissal be on the merits and with prejudice. The order must be modified to delete the final ordering paragraph dismissing the complaint on the merits and with prejudice. Unlike the provisions of CPLR 3216 (subd [a]), CPLR 3215 (subd [c]) does not authorize dismissal of a complaint on the merits (see 4 Weinstein-Korn-Miller, NY Civ Prac, par 3215.15; compare Freeman’s Beverages v National Cash Register Co., 50 AD2d 1075 [holding that a dismissal pursuant to CPLR 3404 is not a dismissal on the merits]). Plaintiff’s claim has at least apparent merit and since the Statute of Limitations had not run before plaintiff instituted a new action, there is no justification for denying plaintiff its day in court (Siegel, Supplementary Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3042:16, 1980-1981 Pocket Part, pp 115-116.) (Appeal from order of Monroe Supreme Court, White, J. — dismiss complaint.) Present — Dillon, P.J., Simons, Callahan, Denman and Moule, JJ.

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Order unanimously modified and, as modified, affirmed, without costs, in accordance with the following memorandum: Conceding that on defendant’s motion under CPLR 3215 (subd [c]) Special Term properly dismissed the complaint as abandoned, plaintiff appeals only from so much of the order as directed that the dismissal be on the merits and with prejudice. The order must be modified to delete the final ordering paragraph dismissing the complaint on the merits and with prejudice. Unlike the provisions of CPLR 3216 (subd [a]), CPLR 3215 (subd [c]) does not authorize dismissal of a complaint on the merits (see 4 Weinstein-Korn-Miller, NY Civ Prac, par 3215.15; compare Freeman’s Beverages v National Cash Register Co., 50 AD2d 1075 [holding that a dismissal pursuant to CPLR 3404 is not a dismissal on the merits]). Plaintiff’s claim has at least apparent merit and since the Statute of Limitations had not run before plaintiff instituted a new action, there is no justification for denying plaintiff its day in court (Siegel, Supplementary Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3042:16, 1980-1981 Pocket Part, pp 115-116.) (Appeal from order of Monroe Supreme Court, White, J. — dismiss complaint.) Present — Dillon, P.J., Simons, Callahan, Denman and Moule, JJ.

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84 A.D.2d 670, 446 N.Y.S.2d 621, 1981 N.Y. App. Div. LEXIS 15790, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lincoln-first-bank-v-palmyra-motors-inc-nyappdiv-1981.

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