Bandler v Liberty Chevrolet, Inc.

[*1] Bandler v Liberty Chevrolet, Inc. 2010 NY Slip Op 50475(U) [26 Misc 3d 146(A)] Decided on March 22, 2010 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through March 24, 2010; it will not be published in the printed Official Reports.

Decided on March 22, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Shulman, Hunter, JJ
.

Michael Bandler, Plaintiff-Respondent, 570777/09

against

Liberty Chevrolet, Inc., Defendant-Appellant, and JP Morgan Chase Bank, Defendant.

Defendant Liberty Chevrolet, Inc. appeals from a judgment of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), entered February 3, 2009, after a nonjury trial, in favor of plaintiff and awarding him damages in the principal sum of $23,348.84, which appeal brings up for review (see CPLR 5501[a][1]) an order (same court, Francis M. Alessandro, J.), dated June 3, 2008, which, among other things, denied defendant's motion for summary judgment dismissing the complaint as against it.

Per Curiam.

Judgment (Fernando Tapia, J.), entered February 3, 2009, appeal from which brought up for review an order (same court, Francis M. Alessandro, J.), dated June 3, 2008, reversed, with $30 costs, defendant Liberty Chevrolet's motion for summary judgment granted and complaint dismissed as against it. The Clerk is directed to enter judgment accordingly.

"A dismissal with prejudice' generally signifies that the court intended to dismiss the action on the merits'" (Yonkers Contr. Co., Inc. v Port Auth. Trans-Hudson Corp., 93 NY2d 375, 380 [1999]). Here, a prior action commenced by plaintiff in 2003 was dismissed "with prejudice" by an order (Ben R. Barbato, J.), dated August 24, 2006, upon defendant's motion pursuant to CPLR 3211. In that order, Civil Court also denied plaintiff's cross motion to amend the complaint underlying that action. Therefore, defendant's motion for summary judgment dismissing the complaint in the within action, which is based upon the same transactions and seeks the same relief as the prior action, should have been granted (see Yonkers Contr. Co., Inc., supra; Feigen v Advance Capital Mgt. Corp., 146 AD2d 556 [1989]; cf. Avins v Fedn. Empl. & [*2]Guidance Serv., Inc., 67 AD3d 505 [2009]).

In light of this determination, we need not address defendant's assignments of trial error. We do note the trial court's failure to comply with the specificity requirements of CPLR 4213(b).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: March 2010