Opinion
April 19, 1976
In an action upon instruments for the payment of sums of money only, commenced pursuant to CPLR 3213, defendant August J. Mirande (sued herein as Augusto Mirando) appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County, dated June 12, 1975, as failed to grant his cross application for summary judgment. The said defendant also purports to appeal from an order of the same court, dated December 5, 1975, which denied his motion to dismiss the complaint or, in the alternative, to strike the note of issue. Appeal from the order dated December 5, 1975, dismissed, without costs or disbursements. No notice of appeal has been filed from such order. Order dated June 12, 1975 affirmed insofar as appealed from, without costs or disbursements. In our opinion, the dismissal of plaintiff's similar action against defendant in Special Term, New York County, for failure to appear for trial, was not on the merits and therefore is no bar to the within action (see CPLR 3216, subd [a], 5013; cf. Greenberg v De Hart, 4 N.Y.2d 511). Gulotta, P.J., Martuscello, Latham, Cohalan and Shapiro, JJ., concur.