Jones v. Maphey
| Decision Date | 26 June 1980 |
| Citation | 431 N.Y.S.2d 466,409 N.E.2d 939,50 N.Y.2d 971 |
| Parties | , 409 N.E.2d 939 Barry F. JONES, an Infant by His Father and Natural Guardian, Michael J. Jones, et al., Respondents-Appellants, v. Phillip A. MAPHEY, Sr., et al., Appellants-Respondents. |
| Court | New York Court of Appeals Court of Appeals |
The order of the Appellate Division, 71 A.D.2d 1056, 420 N.Y.S.2d 948, should be reversed, with costs, and plaintiffs' cross appeal should be dismissed.
CPLR 3216 (subd. (a)) authorizes a court to dismiss a complaint "on the merits" when it finds that a party has unreasonably neglected to prosecute his claim. Contrary to the view expressed by the Appellate Division in this case, there is no requirement that the dismissing court in all cases consider the evidentiary support for the claim before determining whether the dismissal should be "on the merits", nor that the motion papers explicitly so request. As we stated in Headley v. Noto, 22 N.Y.2d 1, 4, 290 N.Y.S.2d 726, 729, 237 N.E.2d 871, 874: .
Under the facts presented in this case, there was no abuse of discretion in Special Term's decision to specify in its order that the dismissal was "on the merits", particularly in view of plaintiffs' prolonged neglect of their case. Since the Appellate Division's determination was based upon its erroneous assumption that Special Term's actions were improper as a matter of law, its order vacating the default judgment and substituting therefor a second default judgment with the term "on the merits" deleted must be reversed. We add only that, in light of our resolution of this issue, we do not find it necessary to consider the propriety of utilizing the mechanism of a motion to vacate pursuant to CPLR 5015 as a means of requesting a substantive revision of the terms of an otherwise valid default judgment (cf. Herpe v. Herpe, 225 N.Y. 323, 122 N.E. 204; Horan v. Town of Brookhaven, 29 A.D.2d 563, 286 N.Y.S.2d 450).
Plaintiffs' cross appeal from so much of the order of the Appellate...
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