Jones v. Maphey

• Decision Date: 28 September 1979
• Citation: 71 A.D.2d 1056,420 N.Y.S.2d 948
• Parties: Barry F. JONES, an infant, by his father and natural guardian, Michael J. Jones, and Michael J. Jones, Individually, Appellants, v. Phillip A. MAPHEY, Sr., Joanne V. Maphey and Phillip A. Maphey, Jr., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 948

420 N.Y.S.2d 948

71 A.D.2d 1056

Barry F. JONES, an infant, by his father and natural guardian, Michael J. Jones, and Michael J. Jones, Individually, Appellants, v. Phillip A. MAPHEY, Sr., Joanne V. Maphey and Phillip A.

Maphey, Jr., Respondents.

Supreme Court, Appellate Division, Fourth Department.

Sept. 28, 1979.

Robert B. Shaad, Watertown, for appellants.

Wilmott, Wisner, McAloon & Scanlon, Watertown, by Kim Martusewicz, Alexandra Bay, for respondents.

Before CARDAMORE, J. P., and SIMONS, HANCOCK, CALLAHAN and MOULE, JJ.

MEMORANDUM:

Plaintiffs appeal from an order denying their motion to vacate a judgment dismissing their complaint on the merits. The clerk entered the judgment of dismissal in accordance with an order made by Special Term on June 14, 1977 pursuant to CPLR 3216 which specified that the plaintiffs' complaint be dismissed on the merits. The order of dismissal was granted by default when plaintiffs' attorney failed to appear on the return date of defendants' motion.

The summons in the action was served on September 30, 1974. The complaint was served on or about January 29, 1976 and issue was joined on March 10, 1976. Examinations before trial were conducted on July 29, 1976, and a bill of particulars was served on August 9, 1976. The demand to serve and file a note of issue within forty-five days as then required by CPLR 3216, subd. b, par. (3) was served by defendants on April 1, 1977. Upon plaintiffs' failure to comply defendants moved pursuant to CPLR 3216 (subd. a) for dismissal of the complaint. Neither the notice of motion, served May 23, 1977, nor the motion papers contained a request that the dismissal be on the merits. On the return date, June 13, 1977, plaintiffs' attorney did not appear and the order was taken by default. Special Term, apparently on its own motion, added the proviso that the complaint be dismissed on the merits.

"Unless the order specifies otherwise, the dismissal (for neglect to prosecute) is not on the merits" (CPLR 3216, subd. a). Because a dismissal on the merits is res judicata and bars a subsequent action, an order granted pursuant to CPLR 3216, where the basis for the motion, as here, is solely the failure to prosecute, is ordinarily not on the merits. Where, however, the record before the court demonstrates that the case is so lacking in substance as to warrant an order of dismissal on the merits the court is empowered to make such an order. "Certainly this power conferred by 3216 (subd. a) is not to be exercised upon judicial whim" (Seigel, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 7B, CPLR 3216:12, p. 922).

Here defendants' notice of motion and answering affidavit cited only the failure...