Carter v. Carter

• Court: New York Supreme Court
• Writing for the Court: G. ROBERT WITMER
• Citation: Carter v. Carter, 223 N.Y.S.2d 319, 32 Misc.2d 366 (N.Y. Sup. Ct. 1962)
• Decision Date: 05 January 1962
• Parties: Eleanor V. CARTER, Plaintiff, v. Robert W. CARTER, Defendant.

Page 319

223 N.Y.S.2d 319

32 Misc.2d 366

Eleanor V. CARTER, Plaintiff, v. Robert W. CARTER, Defendant.

Supreme Court, Monroe County.

Jan. 5, 1962.

Edmund Clynes, Rochester, for defendant, movant.

Yanowitch & Frank, Rochester, Bernard A. Frank, Rochester, of counsel, for plaintiff, respondent.

G. ROBERT WITMER, Justice.

Defendant has moved for an order dismissing the complaint herein under Rule 107 (subd. 4) and Rule 106 (subd. 4) of the Rules of Civil Practice on the grounds that (1) there is an existing final judgment determining on the merits this same cause of action between these parties and (2) the complaint does not state facts sufficient to constitute a cause of action.

In her complaint plaintiff alleges that she and defendant entered into a separation agreement in April, 1952 wherein defendant agreed to pay to plaintiff the sum of $30 each week thereafter for her support and that on May 31, 1952 said agreement was incorporated into a decree of divorce granted in the State of Nevada. Plaintiff alleges that although defendant has made some payments under said decree, there is due to her thereunder the sum of $12,940.

Defendant's motion to dismiss the complaint on the ground that there is an existing final judgment determining this issue on the merits is based upon the following facts:

In May, 1955 plaintiff brought suit in Monroe County Court upon said decree of divorce for the unpaid support payments required thereunder. At that time plaintiff was a nonresident. Defendant obtained a stay of that action until plaintiff should file security for costs. Plaintiff never filed such security; and on defendant's motion an order was made by the Monroe County Court on September 6, 1961 and duly entered, dismissing said action for failure to prosecute, under section 181 of the Civil Practice Act and Rule 156 of the Rules of Civil Practice. Thereafter, plaintiff instituted this action.

Defendant contends that such dismissal was on the merits, and that plaintiff is barred from maintaining this action.

A dismissal for failure to prosecute is not upon the merits. (Mintzer v. Carl M. Loeb, Rhoades & Co., 10 A.D.2d 27, 29, 197 N.Y.S .2d 54, 57.) Insofar as the Statute of Limitations has run on items of the dismissed cause of action, the dismissal for failure to prosecute does in effect bar plaintiff's right to relitigate the issue as to such items (C.P.A. § 23; Pomerantz v. Cave, 10 A.D.2d 569, 197 N.Y.S.2d 406, lv. to appeal denied 8 N.Y.2d 914, 204 N.Y.S. 160, 168 N.E.2d 832; Miller v. Nainzl, 29 Misc.2d 514, 216 N.Y.S.2d 346; and Scott v. Rosenwitz, Sup., 213 N.Y.S.2d 196); but in this case defendant will need to interpose an appropriate defense with respect thereto. In some situations where dismissal for failure to prosecute has occurred (as under Rule 302 of the Rules of Civil Practice) a plaintiff may secure relief by moving to open his default (see Mintzer v. Carl M. Loeb, Rhoades & Co., supra, 10 A.D.2d 27, 29, 197 N.Y.S.2d 54, 57; and Marco v. Sachs, 25 Misc.2d 763, 202 N.Y.S.2d 681, affd. 12 A.D. 774, 209 N.Y.S.2d 403).

Where the Statute of Limitations has not run on the cause of action, the dismissal for failure to prosecute does not bar the institution of a new action. (C.P.A. § 482; Mintzer v. Carl M. Loeb, Rhoades & Co., supra, 10 A.D.2d 27, 31, 197 N.Y.S.2d 54, 59.)

In the case at bar it may be that ...