Summary
noting that an order which is silent as to whether it is made with or without prejudice is deemed to have been made without prejudice
Summary of this case from Gowen v. Helly Nahmad Gallery, Inc.Opinion
March 7, 1996
Appeal from the Supreme Court, New York County (Richard Lowe, III, J.).
On appeal, plaintiff would have this Court modify, first, the order and judgment to have it provide that the dismissal of the complaint, as abandoned, pursuant to CPLR 3215 (c), was without prejudice, and, second, to delete from the IAS Court's decision the language that "plaintiff landlord's claim against the deceased tenant's estate has no merit". Since the judgment is silent as to "prejudice", it is deemed to be not on the merits (CPLR 5013), and it is without prejudice to the filing of a new action, unless time-barred, and thus, this aspect of the appeal should be dismissed for lack of aggrievement (CPLR 5511). The other aspect of the appeal, taken from a nonappealable paper, also should be dismissed. The offending language, that the action lacks merit, is found only in the court's decision and not in the order and judgment (CPLR 5512 [a]; compare, Lincoln First Bank v. Palmyra Motors, 84 A.D.2d 670) and cannot be viewed as an affirmed finding of this Court.
Concur — Murphy, P.J., Sullivan, Wallach, Ross and Williams, JJ.