Bank of New York v. Monticello

Full title: BANK OF NEW YORK, Respondent, v. LS MONTICELLO JV et al., Appellants

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Nov 14, 1994

209 A.D.2d 464 (N.Y. App. Div. 1994)

619 N.Y.S.2d 639

Opinion

November 14, 1994

Appeal from the Supreme Court, Westchester County (Nastasi, J.).

Ordered that the order is affirmed, with costs.

In denying the defendants' motion to dismiss the plaintiff's second complaint pursuant to CPLR 3211 (a) (5) based, inter alia, on the doctrine of res judicata, the Supreme Court indicated that its prior order dismissing the plaintiff's first complaint pursuant to the Uniform Rules for Trial Courts ( 22 NYCRR 202.27 [former (2)]), "was not an adjudication on the merits and did not preclude the commencement of a new action by the plaintiff". In light of the broad latitude afforded a court pursuant to 22 NYCRR 202.27 (former [2]), we conclude that the Supreme Court did not improvidently exercise its discretion in directing dismissal of the first action without prejudice. Accordingly, dismissal of the second action is not warranted. Bracken, J.P., Balletta, Ritter, Pizzuto and Florio, JJ., concur.